Delhi District Court
Civil Judge01 ( West) vs Satish Kumar Jain 1/2 on 17 August, 2022
IN THE COURT OF SH. ANKIT KARAN SINGH,
CIVIL JUDGE01 ( WEST), TIS HAZARI COURTS, DELHI
CS SCJ NO. 606753/16
CNR NO. PDLWT 030000072007
Date of institution of suit : 09.03.2007
Date of reservation of Judgment : 05.08.2022
Date of passing of Judgment : 17.08.2022
Smt. Munni Devi (now deceased)
through LRs :
(1) Smt. Parvati
W/o Sh. Bhawani Shankar
R/o C23, Nank Chand Basti
Kotla Mubarakpur
New Delhi.
(ii) Smt. Lakshmi Devi
D/o Chhotey Lal
E1160, Ground Floor
Jahangirpuri
Delhi110033.
(iii) Sh. Duli Chand
S/o Sh. Chhotey Lal
R/o 1160C, Eblock, Second floor
Jahangirpuri
Delhi110033.
2. Sh. Brahm Parkash
S/o Late Sh. Dal Chand
Both residents of H.No. T57 ( C)
First floor, Tokri Walan, near Azad Market
Delhi06.
.................Plaintiffs
CS SCJ No. 606753 Muuni Devi Vs. Satish Kumar Jain 1/21
Vs.
1. Sh. Satish Kumar Jain
S/o Sh. Chiranji Lal Jain
R/o House NO. 152, C9, Sector7
Rohini, Delhi85.
2. Sh. Raj Bahadur Jain
S/o Sh. Chiranji Lal Jain
R/o LIG Flat No. B2/56
Ashok Vihar, PhaseII
Delhi110052.
...........Defendants
SUIT FOR DECLARATION WITH CONSEQUENTIAL
RELIEF OF PERMANENT INJUNCTION
JUDGEMENT
1. Briefs facts of the present case as per plaint of the plaintiff are that the plaintiff no.1 was an illiterate, innocent lady and was the owner of the entire property bearing No. T57(C), situated at Tokriwalan, Near Azad Market, Delhi06 (hereinafter referred to as 'suit property') and the suit property is bounded with other's property in eastern side and west side and towards north side is bounded with other's house and there is gali in the southern side of suit property. It is pleaded that the suit property consists of two storeys i.e ground floor and first floor and on the roof of the first floor of the suit property there is a tin shed structure.
2. It is further pleaded that in the year 1998, the husband of the plaintiff became seriously ill and therefore she required money for the treatment of her husband, therefore she wanted to sell out the ground floor CS SCJ No. 606753 Muuni Devi Vs. Satish Kumar Jain 2/21 and first floor of suit property no. T57(C). It is further pleaded that defendants as well as plaintiff no.2 approached plaintiff no.1 as they wanted to purchase the said portions of suit property i.e the plaintiff no.2 wanted to purchase the first floor of the suit property while the defendants wanted to purchase the ground floor of suit property and accordingly on the morning of 08.06.1998, the payment of ground floor of suit property was made by defendants to plaintiff against the sale consideration for the ground floor and plaintiff no.2 had also made the full and final payment of the first floor of the suit property, thereafter the plaintiff was taken to the office of SubRegistrar, where the defendants had already got typed sale documents with them and plaintiff no.2 had got prepared the sale documents with regard to first floor of the suit property and they hurriedly asked the plaintiff no.1 to put her thumb impression on those typed documents and her brother i.e plaintiff no.2, Sh. Brahm Prakash was also asked by defendants to sign as a witness on their documents. It is further pleaded that plaintiff no.1 and plaintiff no.2 hurriedly put their hands on those sale documents without going into the contents of the same and thereafter both plaintiffs and defendants appeared before the concerned Subregistrar at Kashmere Gate, Delhi and simultaneously just thereafter plaintiff no.1 and 2 appeared before the Subregistrar and sale documents were executed for the first floor in favour of plaintiff no.2. It is further pleaded that at that time plaintiff no.1 and 2 had no knowledge that the defendants had got signed the documents with regard to entire property bearing no. T56 (C). It is further pleaded that after that the plaintiff no.1 returned to her house under the impression that she has sold the ground floor to the defendants and the first floor to plaintiff no.2. It is further stated that thereafter both the vendees i.e. defendants had taken the CS SCJ No. 606753 Muuni Devi Vs. Satish Kumar Jain 3/21 possession of ground floor and plaintiff no.2 had taken the possession of the first floor of the suit property and the top floor i.e the structure on the roof of the first floor remained with the plaintiff. Thus, the plaintiff no.2 and defendants remained in possession of their respective floors.
3. It is further stated that on 28.02.2007, defendants alongwith their associates started making holes in the stairs i.e. in the portion of the stairs leading to the first floor and top floor of the suit property. It is further stated that plaintiffs strongly resisted to the said acts of the defendants. It is further stated that at that time plaintiff told them that she has sold them only the ground floor of the suit property and they have no concern or connection with the upper floors of the suit property and so why they were making the holes in the stairs leading to first floor and top floor of the suit property but at this to the shock and surprise of the plaintiffs, the defendant no.1 disclosed that they have got thumb marked the documents from the plaintiff with regard to the entire property no. T57 (C) situated at Tokri Walan, Azad Market, Delhi in their favour and not only in respect of the ground floor. It is further stated that both the plaintiffs were shocked and surprised to hear such words from the mouths of defendants and the plaintiffs strongly resisted to the said acts of defendant, but the defendants further replied that they shall grab the entire property of plaintiffs and would dispossess the plaintiff no.2 from the first floor and also plaintiff no. 1 from the top floor of the suit property and would also install the gate in front of the suit property and they also collected the building material and an iron gate and they attempted to install the said gate in front portion of the suit premises leading to the first floor and top floor but with great difficulty the situations was saved, but they threatened to materialize their and said threats very soon. It is further CS SCJ No. 606753 Muuni Devi Vs. Satish Kumar Jain 4/21 stated that plaintiff rushed to police for intervention and action but they did not pay any heed to it.
4. It is further stated that thereafter both plaintiffs went to the office of SubRegistrar on 02.03.2007 for making enquiries about the version of defendants and after inspecting the record of the said office, they came to know that defendants had got thumb marks of the plaintiff no.1 and of the witness i.e. plaintiff no.2 on the said already prepared documents with regard to the entire property no. T57( C), situated at Tokriwalan, near Azad Market, Delhi.
5. It is further stated that on 03.03.2007 in the morning defendants alongwith their associates, labourers and masons etc came to the suit premises of the plaintiff and attempted to install an iron gate on the stair case leading to the first floor and top floor of the suit premises and also attempted to dispossess the plaintiff no.1 from the top floor (as shown red in the site plan) and plaintiff no.2 from the first floor (as shown green in site plan) but again the situation was saved due to the resistance of plaintiffs and due to the intervention of some other persons, but defendants have threatened to materialize their threats and designs very soon. It is further stated that plaintiffs again rushed to local police for intervention but of no avail, hence the present suit has been filed by the plaintiff. '
6. By virtue of present suit the plaintiff has prayed for the following reliefs :
(1) Decree of declaration may kindly be passed in favour of plaintiffs and against the defendants thereby declaring the said sale documents i.e. GPA dated 08.06.1998, registered as document regn.
no. 79, in Addl. Book No. IV, Vol. No.2, on page 11 to 13, regd. Will dated 08.06.1998, Agreement to Sell, Affidavit, Receipt and CS SCJ No. 606753 Muuni Devi Vs. Satish Kumar Jain 5/21 possession letter etc. , all dated 08.06.1998 with regard to property no. T 57(C ), Tokriwala, Near Azad Market, Delhi06 to the extent of the dfrist floor ( as shown green in the site plan) and top floor/2nd floor ( as shown red in the site plan) as null, void, ineffective, without consideration and not binding upon the plaintiffs.
2. Decree of permanent injunction may kindly be passed in favour of plaintiffs and against the defendants, thereby restraining the defendants, their heirs, agents, representatives, assignees and/or anybody on their behalf from dispossessing the plaintiff no.2 from the first floor, ( as shown green in the site plan) and plaintiff no.1 from top/2nd floor i.e. the structure on roof of first floor, ( as shown red in the site plan) forming part of property bearing no. T 57 (C) situated at Tokri Walan, Near Azad Market, Delhi06 and from installing any gate on the ground floor/stairs of the said property leading from ground floor to the first floor and top floor of the said property and from itnerferring in any manner with the peaceful use, occupation, dominion and enjoyment of the plaintiffs on the first floor and top/2ndfloor of the said property in any manner whatsoever.
3. Costs of the suit.
7. Written statement has been filed on behalf of defendants wherein it is stated that due to some personal reasons the defendant no.1 and his brother i.e. defendant no.2 have mutually separated from each other and partition was effected by meets and bounds and accordingly the suit property came into the share of the defendant no.1 as such defendant no.1 has become the absolute owner of the suit property and no one else CS SCJ No. 606753 Muuni Devi Vs. Satish Kumar Jain 6/21 has any right in the said property and as such the present W.S has been signed and filed by defendant no.1 only. It is further stated that the suit against defendant no.2 be dismissed.
8. It is further stated that the suit of the plaintiffs is not maintainable in the present form. It is further submitted that the relief claimed by the plaintiffs is not maintainable in the eyes of law. It is further stated that the suit for declaration is not maintainable. It is further stated that the plaintiffs should have filed separate suits as the properties are different. It is further stated that the plaintiff is seeking relief in respect of a part of the documents as such the suit is not maintainable.
9. It is further stated that the suit of the plaintiff is barred by limitation hence liable to be dismissed. It is further stated that the documents, in respect of which the relief has been claimed, were executed on 08.06.1998 whereas the present suit has been filed on or after 08.03.2007 i.e after more than six years of execution of documents. It is further stated that the present suit is not maintainable as t he plaintiffs have not come with clean hands before the court.
10. It is further stated that the present suit of the plaintiffs is not maintainable as the plaintiff no.1 was not in possession of the roof i.e. top/second floor of property no. T57( C), Tokriwalan, Near Azad Market, Delhi at the time of filing of present suit. It is further stated that the present suit is not maintainable as the plaintiff no.1 has left with no right in the suit property after selling the same. It is further stated that defendant no.1 is the lawful owner of ground floor and roof of first of floor i.e. second floor with roof/terrace rights of property no. T57 (C ), Tokriwalan, Near Azad Market, Delhi. It is further stated that the present suit has not been properly valued and no proper court fees has been paid. It is further CS SCJ No. 606753 Muuni Devi Vs. Satish Kumar Jain 7/21 stated that the defendant has no concern with the first floor of property no. T57 (C), Tokriwalan, Near Azad Market, Delhi as the defendant no.1 is the owner of ground floor and roof of first floor i.e. sexcond floor with roof/terrace rights of property no. no. T57 (C), Tokriwalan, Near Azad Market, Delhi. It is further stated that since the defendant has no concern with the fist floor as such the court can grant the relief sought by the plaintiffs in respect of first floor only. It is further stated that defendants, after purchasing the ground floor and top floor i.e. a structure on the roof of the first floor of property no. T57 (C), Tokriwalan, near Azad Market, Delhi were in possession of property but during the pendency of this suit, the plaintiffs have trespassed into the suit property i.e. roof of the first floor of property no. T57 ( C), Tokriwalan, near Azad Market, Delhi as such the defendant no.1 has filed a suit against the plaintiffs, which is pending in the court of Ld. Civil Judge, Delhi. It is further stated that the plaintiff no.2 has raised construction of tinshed on the roof of first floor/top floor without any permission of the defendants and started demanding money from the defendants. It is further stated that defendants made a complaint to MCD for unauthorized construction raised by plaintiff no.2 in the portion of defendants. It is further submitted that plaintiff no.2 made a complaint in writing to concerned PS on 01.03.2007 stating that wages were not paid for the construction raised on the roof of the first floor/top floor of property bearing no. T57 (C), Tokriwalan, near Azad Market, Delhi. It is further submitted that plaintiff no.2 obstructed the defendants not to enter in the portion i.e. top floor of property no. T57 (C), Tokriwalan, near Azad Market, Delhi against which a police complaint was made on 07.03.2007 vide DD No. 17 A by the defendants. The police took up the matter and due to intervention of police, the CS SCJ No. 606753 Muuni Devi Vs. Satish Kumar Jain 8/21 plaintiff no.2 withdrew himself from the portion of defendants and compromised in writing. In rest of the written statement averments made in the plaint are denied and prayer is made for dismissal of suit.
11. Replication has been filed by the plaintiff wherein the averments made in plaint are reiterated and the contentions raised in the written statement are denied.
12. Vide Order dated 15.01.2011, following issues were framed (1) Whether the plaintiffs are entitled to a decree for declaration as prayed for ? OPP (2) Whether the plaintiffs are entitled to permanent injunction as prayed for ? OPP (3) Whether the suit is barred by period of limitation ? OPD (4) Whether the suit is properly valued for the purpose of court fees ? OPD (5) Relief.
13. Vide statement made by plaintiff no. 2 on 24.09.2012, plaintiff no.2 was deleted from the array of parties.
14. In order to prove his case plaintiff no.1 has examined herself as PW1 and has tendered in evidence his duly sworn in affidavit. Same is Ex. PW 1/A and has relied upon the following documents :
(1) Site plan Ex. PW 1/ 1(2) Death certificate of Sh. Chottey Lal Ex. PW 1/ 2 (3) photocopy of GPA Mark P1 (4) Photocopy of Will Mark P2 CS SCJ No. 606753 Muuni Devi Vs. Satish Kumar Jain 9/21 Sh. Braham Prakash has been examined as PW2 and has tendered in evidence his duly sworn in affidavit. Same is Ex. PW 2/A. Both the witnesses were crossexamined by counsel for defendant. Thereafter vide statement made on 05.11.2018 by counsel for LRs of plaintiff, PE was closed and the matter was listed for DE.
15. Defendant Sh. Satish Kumar Jain has examined himself as DW1 and has tendered in evidence his duly sworn in affidavit. Same is Ex. DW 1/A and has relied upon the following documents :
(1)Affidavit dated 08.01.2018 alongwith Ex. DW 1/1 (colly) copy of settlement (2)Complaint dated 10.11.2006 already Ex. PW 2/D4 (3)Police complaint dated 07.03.2007 already Ex. PW 2/D3 (4)Photographs alongwith copy of newspaper Ex. PW 2/D5 dated 22.03.2007 (5)Copies of documents i.e. GPA Ex. DW 1/D1 (OSR) Will, Affidavit all dated 08.06.1998, agreement to sell dated 13.04.1998, agreement to sell dated 08.06.1998 receipt dated 08.06.1998 and receipt dated 13.04.1998
16. Besides himself defendant has examined another witness i.e. Head Constable Papegowda, 355/N, P.S. Bara Hindu Rao as DW2 who has brought the Order dated 01.11.2018 of Dr. Commissioner of Police vide which the summoned record has been destroyed. Certified copy of Order is Ex. DW 2/1.
CS SCJ No. 606753 Muuni Devi Vs. Satish Kumar Jain 10/21 Defendant was crossexamined by counsel for plaintiff and thereafter vide statement made by defendant on 28.11.2019 DE was closed.
17. During the proceedings in the present matter, the plaintiff no.1 had died on 11.08.2015 and application for impleadment of LRs of plaintiff no.1 was allowed vide order dated 06.12.2016.
18. My issuewise findings are as under :
ISSUE NO. 1Whether the plaintiffs are entitled to a decree for declaration as prayed for ?
The onus to prove this issue was upon the plaintiffs. Lets see if the plaintiff can even sue for a relief of declaration in the present case. Counsel for the plaintiff has submitted that a suit for declaration in the present case is maintainable. Counsel for the defendant on the other hand has submitted that plaintiff should have prayed for cancellation of the sale documents.
19. In Suhrid Singh @ Sardool Singh vs Randhir Singh and Ors. (2010) 12 SCC 112, Hon'ble Supreme Court has held that :
"6. Where the executant of a deed wants it to be annulled, he has to seek cancellation of the deed. But if a nonexecutant seeks annulment of a deed, he has to seek a declaration that the deed is invalid, or nonest, or illegal or that it is not binding on him. The difference between a prayer for cancellation and declaration in regard to a deed of transfer/conveyance, can be brought out by the following illustration relating to `A' and `B' two brothers. `A' executes a sale deed in favour of `C'. Subsequently `A' wants to avoid the sale. `A' has to sue for cancellation of the deed. On the other hand, if `B', who is not the executant of the deed, wants to avoid it, he has to sue for a declaration that the deed executed by `A' is invalid/void and non est/ illegal and he is not bound by it. In essence both may be suing to have the deed set aside or declared as nonbinding. But the form is different and court fee is also different. If `A', the executant of the deed, seeks cancellation of CS SCJ No. 606753 Muuni Devi Vs. Satish Kumar Jain 11/21 the deed, he has to pay advalorem court fee on the consideration stated in the sale deed. If `B', who is a nonexecutant, is in possession and sues for a declaration that the deed is null or void and does not bind him or his share, he has to merely pay a fixed court fee of Rs. 19.50 under Article 17(iii) of Second Schedule of the Act. But if `B', a non executant, is not in possession, and he seeks not only a declaration that the sale deed is invalid, but also the consequential relief of possession, he has to pay an advalorem court fee as provided under Section 7(iv)(c) of the Act. Section 7(iv)(c) provides that in suits for a declaratory decree with consequential relief, the court fee shall be computed according to the amount at which the relief sought is valued in the plaint. The proviso thereto makes it clear that where the suit for declaratory decree with consequential relief is with reference to any property, such valuation shall not be less than the value of the property calculated in the manner provided for by clause (v) of Section 7."
20 Plaintiff is herself the executant of GPA (Registration no 79, IV Vol no 2, pages 11 to 13), will, agreement for sale, affidavit, receipt and possession letter. Being an executant to the documents mentioned in prayer 1 of the plaint, plaintiff should have prayed for cancellation of the above mentioned documents. At the outset, the prayer of the plaintiff is defective in this regard and cannot be granted. Plaintiff has had many opportunities to amend the plaint and in fact plaintiff has filed four amended plaints on record apart from relied plaint.
21. Even if for the sake of arguments, it is assumed that the plaintiff was indeed entitled to file the suit for declaration, would then plaintiff be entitled to get the relief prayed for on the basis of material on record ? Lets find out on the basis of material on record.
22. In plaint, plaintiff has stated that she sold only ground floor of the suit premises and not the entire property to the defendants. During crossexamination, PW1 stated that she is not aware how much money was taken from Sh. Satish. It was further deposed that money was taken in the presence of her husband and her husband is aware of it. Such stance CS SCJ No. 606753 Muuni Devi Vs. Satish Kumar Jain 12/21 was not taken in the plaint nor in the evidence by way of affidavit. It was the case of plaintiff that her husband was unwell due to which ground floor of the property was sold to the defendant. The issue of husband of plaintiff involved in the transaction or receipt of consideration was not raised in the plaint. In para 3 of the evidence by way of affidavit, PW1 has deposed that on 08.06.1998, the payment of the ground floor of the suit premises was made by the defendants to the plaintiff against the sale consideration. In her crossexamination, PW1 has deposed that sale consideration was taken in the presence of her husband and her husband is aware about how much consideration was paid. The husband of the plaintiff was never called to depose in the present case. The statement of PW1 is contradictory to the extent that in her affidavit she is saying that sale consideration was paid to her however, in her crossexamination she stated that sale consideration was paid in presence of her husband who knows what consideration amount was paid.
23. PW1 has deposed in para 3 of her affidavit that her brother PW2 Sh. Brahm Parkash prepared the sale documents with respect to the first floor of the suit premises. PW2 during his crossexamination conceded that "I cannot produce the documents executed by Munni Devi in my favour. I do not know where have I kept those documents. It is wrong to suggest that I am purposely concealing documents from the court." In the present case, plaintiff or her brother PW2 did not produce documents pertaining to first floor of the suit premises allegedly executed by the plaintiff in favour of her brother. On the basis of material available on record this court can say that no documents were ever executed by the plaintiff in favour of her brother qua first floor of the suit property in year 1998. Had any documents been executed in favour of PW2 then PW2 CS SCJ No. 606753 Muuni Devi Vs. Satish Kumar Jain 13/21 must have produced the same before the court.
24. In plaint, plaintiff has taken the stand that defendants have usurped the entire property of the plaintiff. In para 3 of her affidavit, PW1 has deposed that defendants got signed the documents with regard to ground floor and entire second floor with roof terrace right. Para 5 of affidavit of PW1 also deposes that defendants usurped the roof rights along with ground floor. In para 7 PW1 further deposed that defendants got executed the documents of the entire property including the first floor. In her crossexamination, PW1 stated that "It is correct that I had sold the first floor of said property to Satish." It is clear from above that PW1 is not clear and stable in her stand. Defendants are not even staking their claim over first floor of the suit premises. Ex DW1/D1 also does not mention about first floor of the suit premises.
25. Plaintiff has not brought any material to show that her husband was actually ill at the time of execution of Ex DW1/D1. In cross examination PW2 has stated that husband of plaintiff was suffering from TB before his death in the year 2002. Such factum of TB has not been mentioned in the plaint or in the affidavit of PW1 or PW2. Plaintiff has failed to proved any illness of the her husband.
26. Can plaintiff avoid the consequences of execution of Ex DW1/D1 by simply pleading illiteracy and nonawareness of its contents? Mere illiteracy cannot be a ground to seek declaration of a document as null and void. In the present case, property documents were not prepared by the defendants. In fact, property documents were prepared by the PW2 i.e. brother of the plaintiff. Once, property documents were prepared by PW2, then plaintiff cannot say that she was cheated by defendants. PW2 during his crossexamination conceded that "I got the property documents CS SCJ No. 606753 Muuni Devi Vs. Satish Kumar Jain 14/21 made at the chamber of the counsel somewhere near Ritz Cinema. The property documents pertaining to my purchase were got prepared at my instance by my counsel." It is further stated in the crossexamination of PW2 that "After getting the documents signed we were asked to wait there and subsequently after an hour or so we were informed by the clerk of the counsel that our number has come before the Sub Registrar." Plaintiff and PW2 have tried to give a picture that documents were prepared by defendants and plaintiff, in a fraudulent manner, was asked to execute the documents hurriedly at SubRegistrar office. The case of the plaintiff shatters when it is admitted by PW2 that documents were prepared by him. Plaintiff has not been able to show any fraud or mischief committed by the defendants. PW1 during her crossexamination conceded that "I had also not read the sale documents executed in favour of Sh. Brahm Parkash." PW1 during her crossexamination further conceded that "I had also not read the contents of sale documents which were executed in my favour earlier. I did not ask about the contents of sale documents executed in favour of Satish Jain at the time of thumb marking the same in the office of sub registrar." It is clear from above, that plaintiff was in the habit of executing documents without reading their contents. Plaintiff even did not ask about the contents of the sale documents while thumb marking them at the office of sub registrar. Plaintiff must face the consequences of her action. When she voluntarily did not ask about the contents of the sale documents, she cannot now say that she was not told about the contents of the documents.
27. Counsel for the plaintiff has submitted that defendants could not lead evidence beyond their written statement. Counsel for the plaintiff relied upon the following judgements in this regard:
CS SCJ No. 606753 Muuni Devi Vs. Satish Kumar Jain 15/21 I) Ram Kumar Jain vs Savitri Devi, CM(M) 738/2018, in Hon'ble Delhi High Court II) Bachhaj Nahar vs Nilima Mandal & Anr, SLP No 2376667 of 2005, in Hon'ble Supreme Court of India III) Ram Sarup Gupta vs Bishun Narain Inter College & Ors., 1987 AIR 1242, in Hon'ble Supreme Court of India
28. Even if we ignore the evidence led beyond pleadings by DW 1, still on the basis of material available on record, plaintiff is not entitled to relief prayed for. In view of the above, this issue is decided against plaintiff.
29. ISSUE NO. 2Whether the plaintiffs are entitled to permanent injunction as prayed for ?
The onus to prove this issue was upon the plaintiff. Permanent injunction is an equitable relief granted when there exists grounds for threat of breach of an obligation. In the present case, admittedly as per plaintiff she has sold the first floor of the suit premises to PW2 and defendants are also not staking their claim over the first floor of the suit premises.
30. Defendants have purchased the ground floor of the suit premises along with roof rights by virtue of Ex DW 1/D1. Plaintiff has admitted execution of Ex DW1/D1. It is settled law that no injunction can be granted against the true owner of the suit premises. Defendants have shown themselves to be owner of ground floor and roof top of the suit premises. Thus no permanent injunction can be granted against defendants with respect to rooftop of the suit premises. It is to be noted that CS SCJ No. 606753 Muuni Devi Vs. Satish Kumar Jain 16/21 defendants have not claimed any right, title or interest over the first floor of the suit premises. In view of the above and observations and findings recorded in issue no 1, this issue is decided against the plaintiff.
31. ISSUE NO.3 Whether the suit is barred by period of limitation ? The onus to prove this issue was upon the defendant. Counsel for the defendants has argued that the suit filed by the plaintiff is barred by limitation. Counsel for the plaintiff on the other hand has submitted that the suit filed is within the limitation period.
32. In the present case, plaintiff has sought declaration and permanent injunction. Article 58 of Limitation Act provides for three years of limitation period to obtain any other declaration. The limitation period begins from the date when the right to sue first accrues. So far as the relief of permanent injunction is concerned Article 113 of Limitation Act would apply and limitation period will begin when right to sue accrues.
33. In Khatri Hotels Private Limited & Anr. Vs. Union of India & Anr., (2011) 9 SCC 126, Hon'ble Supreme Court, held that "27. While enacting Article 58 of the 1963 Act, the legislature has designedly made a departure from the language of Article 120 of the 1908 Act. The word `first' has been used between the words `sue' and `accrued'. This would mean that if a suit is based on multiple causes of action, the period of limitation will begin to run from the date when the right to sue first accrues. To put it differently, successive violation of the right will not give rise to fresh cause and the suit will be liable to be dismissed if it is beyond the period of limitation counted from the day when the right to sue first accrued."
CS SCJ No. 606753 Muuni Devi Vs. Satish Kumar Jain 17/21 34 In Union of India & Ors. vs. West Coast Paper Mills Ltd. & Anr, 5 (2004) 2 SCC 747, Hon'ble Supreme Court has held that "21. A distinction furthermore, which is required to be noticed is that whereas in terms of Article 58 the period of three years is to be counted from the date when "the right to sue first accrues", in terms of Article 113 thereof, the period of limitation would be counted from the date "when the right to sue accrues". The distinction between Article 58 and Article 113 is, thus, apparent inasmuch as the right to sue may accrue to a suitor in a given case at different points of time and, thus, whereas in terms of Article 58 the period of limitation would be reckoned from the date on which the cause of action arose first, in the latter the period of limitation would be differently computed depending upon the last day when the cause of action therefor arose."
35. As per plaint, plaintiff came to know about mischief of the defendants only on 28.02.2007 when the defendants disclosed that they have got executed the documents of the entire property including the first floor and top floor of the suit premises. No photographs have been placed by the plaintiff on record to show that defendants were actually making holes in the stairs on 28.02.2007. Further there is nothing on record to show that plaintiff actually made any inquires on 02.03.2007 before the Sub Registrar and actually inspected the record. Further, there is nothing on record to show that defendants actually tried to install iron gate on 03.03.2007.
36. PW2 during his crossexamination has admitted that "I got the property documents made at the chamber of the counsel somewhere near Ritz Cinema. The property documents pertaining CS SCJ No. 606753 Muuni Devi Vs. Satish Kumar Jain 18/21 to my purchase were got prepared at my instance by my counsel." Plaintiff has admitted the execution of Ex. DW 1/D1 in favour of the defendants. It is further proved that draft documents (Ex. DW 1/D1) were prepared by the brother of the plaintiff. It is further admitted that plaintiff and her brother were present before the sub registrar when Ex. DW1/ D1 were executed. Once it is proved that documents Ex DW 1/D1 are prepared at behest of PW2 then plaintiff cannot take the stand that she did not intend to sell roof of the suit premises. The contents of the Ex DW1/ D1 shall be imputed upon the plaintiff. If such view is not taken, then every other document executed by illiterate person in this country would be liable to be declared null and void on the ground that executant was not aware of its contents. It is also to be noted that PW1 in her crossexamination conceded that "I do not remember the date, month or year when defendant tried to construct the staircase."
37. In view of the above, this court does not find that cause of action has arisen on 28.02.2007 in favour of the plaintiff. The reliefs prayed by the plaint were barred by limitation period. This issue is decided in favour of the defendants.
38. ISSUE NO. 4Whether the suit is properly valued for the purpose of court fees ?
The onus to prove this issue was upon the defendant.
Counsel for the defendant has argued that initial burden to prove this issue should be on the plaintiff requiring her to show how the present suit has been properly valued for the purpose of CS SCJ No. 606753 Muuni Devi Vs. Satish Kumar Jain 19/21 court fee and only after, the plaintiff has discharged her initial burden, the same can only be shifted on the defendants to prove contrary.
39. It is further argued that a bare perusal of Para 12 of the plaint of the present suit shows that nowhere the plaintiff has stated as to how the present suit has been valued at ₹50,000/ for relief of declaration and nothing has been stated as to whether ₹50,000/ is the market value of the suit property prevailing on the date of filing of the present suit or the amount of sale consideration at which the suit property was sold to the defendants. It is further argued that a party being executant of a document cannot seek declaration of such document by arbitrarily valuing relief of declaration and the executant of a document has to seek cancellation of a document executed by him/her after paying advalorem court fee on the value of right created by such document. Counsel for the defendant has relied upon the Judgement of Suhrid Singh vs Randhir Singh, (2010) 12 Supreme Court Cases 112 in this regard.
40. Counsel for the plaintiff on the hand has refuted the contentions raised by the counsel for defendant and has submitted that suit is properly valued for the purpose of reliefs claimed.
41. Plaintiff being the executant of Ex DW1/D1 cannot seek declaration. Plaintiff should have sought cancellation of Ex DW1/D1. Thus, court fees has to be paid on the value of consideration i.e. Rs.1,50,000/. In the present case, plaintiff has valued her relief of declaration @ Rs. 50,000/. It is apparent that CS SCJ No. 606753 Muuni Devi Vs. Satish Kumar Jain 20/21 suit was neither properly valued nor proper court fees was paid by the plaintiff thereon.
In view of the above, this issue is also decided against the plaintiff.
42. RELIEF In view of the above issuewise findings and observations, all the issues stand decided against the plaintiff. The suit of the plaintiff stands dismissed. No order as to costs.
Decree sheet be prepared accordingly.
File be consigned to Record Room after due
compliance. Digitally signed
ANKIT by ANKIT
KARAN SINGH
KARAN Date:
2022.08.17
SINGH 16:57:17 +0530
Pronounced in the open court (Ankit Karan Singh)
today i.e. on 17.08.2022 Civil Judge01(West)/Delhi
CS SCJ No. 606753 Muuni Devi Vs. Satish Kumar Jain 21/21