Delhi High Court
Sh. Anil Singh & Anr. vs Sh. M.L. Ahuja & Ors. on 25 February, 2010
Author: Manmohan Singh
Bench: Manmohan Singh
* HIGH COURT OF DELHI : NEW DELHI
+ I.A. No.1097/1999 in CS(OS) No.1636/2005
% Pronounced on: 25.02.2010
SH. ANIL SINGH & ANR. ...Plaintiffs
Through: Mr. Sandeep Sethi, Sr. Advocate
with Mr. A. Chaturvedi, Mr. Sindhu
Sinha & Mr. Nikhil Bhalla,
Advocates.
Versus
SH. M.L. AHUJA & ORS. ....Defendants
Through: Mr. Ravinder Sethi, Sr. Advocate
with Ms. Mamta Mehra, Ms.
Anupama Beniwal & Mr. Rajiv,
Advocates for Defendant Nos. 2 to
4.
Coram:
HON'BLE MR. JUSTICE MANMOHAN SINGH
1. Whether the Reporters of local papers may
be allowed to see the judgment? No
2. To be referred to Reporter or not? Yes
3. Whether the judgment should be reported Yes
in the Digest?
MANMOHAN SINGH, J.
1. By this order I propose to dispose of I.A. No. 1097/1999 filed by Defendant Nos. 2 to 4 under Order VII Rule 11 of the Code of Civil Procedure, 1908 (hereinafter referred to as the „CPC‟) for rejection of plaint. The three Plaintiffs i.e. Sh. Anil Singh S/o. Late Sh. C.P. Singh, Smt. Vimla Singh W/o. Late Sh. C.P. Singh and Smt. Rita Chaudhrie D/o. Late Sh. C.P. Singh filed the present CS (OS) No.1636/2005 Page 1 of 22 suit for declaration and permanent injunction seeking the following reliefs:
"i. Declare the Plaintiffs as the legal heirs of late Shri C.P. Singh and the legal owner and beneficiary of the leasehold rights relating to the suit property and in terms of Annexures 1 and II hereto and no other person and in particular, the Defendant Nos. 1 to 5 cannot claim any right adverse and contrary to the rights of the Plaintiffs and the Plaintiffs alone are entitled to the Suit property and consequential relief of possession of suit property bearing no.124, Janpath, New Delhi in favour of Plaintiffs and against the Defendants;
ii. Declare that the perpetual lease dated 5.8.1957 executed by Defendant No. 5 in favour of Defendant No. 4 is illegal and void and that it does not confer any rights, title or interest in Defendant No.4 and/or in favour of its partners; calling up the original documents, adjudging them as null and void and to cancel the same;
iii. Declare that the alleged partnership entered into between the late Sh. C.P. Singh and Defendant No. 1 to 4 or any of them was illegal, void, fraudulent, fictitious, having been entered into with the illegal and unlawful objectives and for purpose of perpetrating a fraud on Defendant No.5, various CS (OS) No.1636/2005 Page 2 of 22 statutes and the exchequer and is thus not binding on the Plaintiff or Defendant No.5.
iv. Declare that any sale/assignment of rights in the suit property or the alleged partnership by Late Shri C.P. Singh whereby legal rights and interests in the suit property were sought to be created directly or indirectly in favour of Defendants No. 1 to 4, or any of them is illegal and bad in law;
v. Declare that Defendant No.2 has no rights, title or interest in the suit property;
vi. Declare that the Defendant No.3 has no right to act as agent of late Sh. C.P. Singh or otherwise in the name of M/s. C.P. Singh & Co.;
vii. Declare that the legal possession of the property vests in the Plaintiffs;
viii. Direct the defendant Nos. 1 to 4 to render accounts and to make over to the Plaintiffs the mesne profits and all benefits earned or derived by them in connection with the suit property;
ix. Issue a permanent and mandatory injunction restraining the defendants No. 1 - 4 their nominees, agents and assigns:
a. From the use and enjoyment of the said property in any manner whatsoever;CS (OS) No.1636/2005 Page 3 of 22
b. From creating any third party interests in the said suit property;
c. From representing themselves to be the legal owners, occupiers or users of the suit property;
d. From acting the attorneys of Late Sh. C.P. Singh.
e. From interfering in the Plaintiff‟s rights of free ingress/egress, use and enjoyment of the suit property as the lawful owners thereof."
2. It is submitted by Defendant Nos. 2 to 4 in the present application that the Plaint should be rejected mainly on the ground that there is no cause of action in favour of the Plaintiffs as the Plaintiffs are seeking to challenge transactions and events concerning the Defendant company which occurred during the year 1957. The Plaintiffs are the wife and children of late Sh. C.P. Singh and they are challenging the documents i.e. partnership and perpetual lease deed which were executed in the year 1957 though the same were never challenged by late Sh. C.P. Singh and moreover he never claimed any right under the said deed when he was alive. Sh. C.P. Singh died on 31 st December, 1984 and the present Suit was filed in the year 1997.
3. The contention of the Defendants is that the Suit is barred by the law of limitation and consequently it discloses no cause of action. It is stated in the application that the deed of perpetual lease was executed CS (OS) No.1636/2005 Page 4 of 22 between the President of India and the Defendant No. 4 way back on 5th August, 1957 in favour of the Defendant No. 4.
4. It is further stated that since 1957, the Defendants have been in possession and occupation of the Suit property openly and without any protest from the predecessor-in-interest of the Plaintiffs and since the present Suit was filed after the expiry of 40 years, the same is barred by Article 58 of the Limitation Act, 1963.
5. Even otherwise, under Section 90 of the Evidence Act, the genuineness of the document cannot be challenged if it is thirty years old and is to be produced from proper custody. The document in question is thirty years old and therefore it cannot be challenged by way of declaration in the year 1997.
6. Another contention of the learned counsel for the Defendants is that the Plaintiffs have no locus standi to file the present Suit as the Plaintiffs have neither set up any Will nor any Succession Certificate, if any, obtained by the Plaintiffs and as far as commission of any fraud is concerned, the same is alleged to have been committed by the Union of India which has executed the document on 5th August, 1957.
7. In reply, it is contended by the Plaintiff that the cause of action arose in or about January/February, 1995 when the Plaintiffs for the first time came to know about the fraud perpetrated by the Defendant Nos. 1 to 4 and further the cause of action arose when the Plaintiffs and their advocate visited the L&DO office and came to know of the fraud, CS (OS) No.1636/2005 Page 5 of 22 mistake and misrepresentation on account of suppression of material fact.
8. As far as the period of limitation is concerned, the contention of the Plaintiffs is that it can be counted from the date when the Plaintiffs came to be aware of the above stated facts. It is argued that the agent was looking after the suit premises through a power of attorney and he suppressed material facts and kept the Plaintiffs in dark and misused that power and misrepresented his position before the authorities. It is also contended that the fraud was committed in connivance with some of the authorities and the agent concealed the actual facts and misrepresented himself and even late Sh. C.P. Singh was kept in the dark with regard to the same.
9. It is submitted by the Plaintiffs that the Defendants in any event have no title or right to become the owners of the suit premises and in case they are claiming the property by way of adverse possession they have to move the Court to prove the same. It is also stated that since the Plaintiffs are the legal heirs of the deceased, therefore, they have locus standi to file the present suit.
10. As far as reference to Section 90 of the Evidence Act is concerned, it is contended by the Plaintiffs that the said provision has no application to the facts of this case as the same clearly lays down that the document has to be proper. It is prayed that the application is totally misconceived and it has been filed in order to delay the proceedings and the same is liable to be dismissed.
CS (OS) No.1636/2005 Page 6 of 22
11. Learned counsel for the Plaintiffs has referred to various decisions in support of his submissions and the same are dealt with hereunder.
12. As regards adverse possession, in Saroop Singh Vs. Banto and Others, (2005) 8 SCC 330 the Supreme Court observed:
30. 'Animus possidendi' is one of the ingredients of adverse possession. Unless the person possessing the land has a requisite animus the period for prescription does not commence. As in the instant case, the Appellant categorically states that his possession is not adverse as that of true owner, the logical corollary is that he did not have the requisite animus. [See Md.
Mohammad Ali (Dead) By LRs. v. Jagdish Kalita and Ors. SCC Para 21 (2004)1 SCC 271]
31. Yet again in Karnataka Board of Wakf v.
Government of India and Ors. (2004) 10 SCC 779, it was observed :
"Physical fact of exclusive possession and the animus possidendi to hold as owner in exclusion to the actual owner are the most important factors that are to be accounted in cases of this nature. Plea of adverse possession is not a pure question of law but a blended one of fact and law. Therefore, a person who claims adverse possession should show: (a) on what date he came into possession, (b) what was the nature of his possession, (c) whether the factum of possession was known to the other party, (d) how long his possession has continued, and (e) his possession was open and undisturbed. A person pleading adverse possession has no equities in his favour. Since he is trying to defeat the rights of the true owner, it is for him to clearly plead and establish all facts necessary to establish his adverse possession."
13. With respect to the genuineness of the documents which can not be challenged under Section 90 of the Evidence Act, 1872, learned CS (OS) No.1636/2005 Page 7 of 22 counsel for the Plaintiffs has referred the decision in the case of M/s. Sodhi Transport Co. & Anr. Vs. State of UP & Anr. AIR 1986 SC 1099 was referred to wherein the Supreme Court held:
"11. In the Indian Evidence Act, 1872 there are three cases where conclusive presumption may be drawn. They are Sections 41, 112 and Section 113. These are cases where law regards any amount of other evidence will not alter the conclusion to be reached when the basic facts are admitted or proved. In Woodroffe & Amir All's Law of Evidence (Vol. I) 14th Edition at page 299 it is stated thus :
Conclusive presumptions of law are :
„rules determining the quantity of evidence requisite for the support of any particular averment, which is not permitted to be overcome by any proof that the fact is otherwise. They consist chiefly of those cases in which the long experienced connection, just alluded to has been found so general and uniform as to render it expedient for the common good that this connection should be taken to be inseparable and universal. They have been adopted by common consent, from motives of public policy, for the sake of greater certainty, and the promotion of peace and quiet in the community; and therefore, it is that all corroborating evidence is dispensed with, and all opposing evidence is forbidden (Taylor, Ev., s.71 : Best, Ev., p. 317, s.304')....
Rebuttable presumptions of law are, as well as the former, 'the result of the general experience of a connection between certain facts or things, the one being usually found to be the companion or the effect of the other. The connection, however, in this class is not so intimate or so uniform as to be conclusively presumed to exist in every case; yet, it is so general that the law itself, without the aid of a jury, infers the one fact from the proved existence of the other in the absence of all opposing evidence. In this mode, the law defines the nature and the amount of the evidence which is sufficient to establish a prima facie case, and to throw the burden of proof upon the other party;CS (OS) No.1636/2005 Page 8 of 22
and if no opposing evidence is offered, the jury are bound to find in favour of the presumption. A contrary verdict might be set aside as being against evidence. The rules in this class of presumptions as in the former, have been adopted by common consent from motives of public policy and for the promotion of the general good; yet not as in the former class forbidding all further evidence, but only dispensing with it till some proof is given on the other side to rebut the presumption raised.
12. Having regard to the definition of the words 'may presume', it is open to a court where they are used in its discretion either to draw a presumption referred to in a law or may not. The words 'shall presume' require the court to draw a presumption accordingly, unless the fact is disproved. They contain a rule of rebuttable presumption. These words i.e., 'shall presume' are being used in Indian judicial lore for over a century to convey that they lay down a rebuttable presumption in respect of matters with reference to which they are used and we should expect that the U.P. Legislature also has used them in the same sense in which Indian courts have understood them over a long period and not as laying down a rule of conclusive proof. In fact these presumptions are not peculiar to the Indian Evidence Act. They are generally used wherever facts are to be ascertained by a judicial process."
14. With regard to limitation and Order VII Rule 11 CPC, in the case of Ramesh B. Desai & Ors. Vs. Bipin Vadilal Mehta & Ors. AIR 2006 SC 3672 the Supreme Court held:
"16. A plea of limitation cannot be decided as an abstract principle of law divorced from facts as in every case the starting point of limitation has to be ascertained which is entirely a question of fact. A plea of limitation is a mixed question of law and fact. The question whether the words "barred by law"
occurring in Order VII Rule 11(d) CPC would also include the ground that it is barred by law of limitation has been recently considered by a two Judge Bench of this Court to which one of us was a CS (OS) No.1636/2005 Page 9 of 22 member (Ashok Bhan J.) in Civil Appeal No. 4539 of 2003 (Balasaria Construction Pvt. Ltd. v. Hanuman Seva Trust and Ors.) decided on 8.11.2005 and it was held: -
"After hearing counsel for the parties, going through the plaint, application under Order 7 Rule 11(d) CPC and the judgments of the trial court and the High Court, we are of the opinion that the present suit could not be dismissed as barred by limitation without proper pleadings, framing of an issue of limitation and taking of evidence. Question of limitation is a mixed question of law and fact. Ex facie in the present case on the reading of the paint it cannot be held that the suit is barred by time."
This principle would be equally applicable to a Company Petition. Therefore, unless it becomes apparent from the reading of the Company Petition that the same is barred by limitation the petition cannot be rejected under Order VII Rule 11(d) CPC."
15. In another case of Balasaria Construction (P) Ltd. Vs. Hanuman Seva Trust and Others (2006) 5 SCC 658, the Apex Court observed:
"8. After hearing counsel for the parties, going through the plaint, application under Order 7 Rule 11(d) CPC and the judgments of the trial court and the High Court, we are of the opinion that the present suit could not be dismissed as barred by limitation without proper pleadings, framing of an issue of limitation and taking of evidence. Question of limitation is a mixed question of law and fact. Ex facie in the present case on the reading of the plaint it cannot be held that the suit is barred by time. The findings recorded by the High Court touching upon the merits of the dispute are set aside but the conclusion arrived at by the High Court is affirmed. We agree with the view taken by the trial court that a plaint cannot be rejected under Order 7 Rule 11(d) of the Code of Civil Procedure."CS (OS) No.1636/2005 Page 10 of 22
16. The law as regards rejection of plaint is quite well settled. In Mayar (H.K.) Ltd. and Others Vs. Owners & Parties, Vessel M.V. Fortune Express and Others (2006) 3 SCC 100 the Apex Court observed:
"12. From the aforesaid, it is apparent that the plaint cannot be rejected on the basis of the allegations made by the defendant in his written statement or in an application for rejection of the plaint. The Court has to read the entire plaint as a whole to find out whether it discloses a cause of action and if it does, then the plaint cannot be rejected by the Court exercising the powers under Order VII Rule 11 of the Code. Essentially, whether the plaint discloses a cause of action, is a question of fact which has to be gathered on the basis of the averments made in the plaint in its entirety taking those averments to be correct. A cause of action is a bundle of facts which are required to be proved for obtaining relief and for the said purpose, the material facts are required to be stated but not the evidence except in certain cases where the pleadings relied on are in regard to misrepresentation, fraud, wilful default, undue influence or of the same nature. So long as the plaint discloses some cause of action which requires determination by the court, mere fact that in the opinion of the Judge the Plaintiff may not succeed cannot be a ground for rejection of the plaint."
17. In a case decided by a Division Bench of this Court being Manmohan Singh Chawla & Ors. Vs. Rajesh Berry & Anr., 2009 (3) AD (Delhi) 259 the Court held:
"It is not in dispute and even the parties were at ad idem that while considering the application under Order VII Rules 10 and 11 of the Code averments made in the plaint and plaint alone are to be seen. At this stage the Court cannot go into the defence of the defendants contained in the written statement or the documents filed by the defendants."CS (OS) No.1636/2005 Page 11 of 22
18. The learned counsel for the Defendants has argued that since the defendant No.2 is the owner of the suit property in question, therefore, the claiming of adverse possession does not arise. His submission is that the judgment referred by the learned counsel for the Plaintiffs i.e. Saroop Singh (supra) has no bearing in the present matter. He further argues that the suit property in question was registered in the name of a partnership firm M/s. C.P. Singh & Company and late Sh. C.P. Singh had sold his rights/shares in the partnership firm M/s. C.P. Singh & Company in favour of defendant No.2 who is now the owner of the property.
19. The next submission of the learned counsel for the Defendants is that the fraud as per the Plaintiffs took place somewhere in the year 1957 and Sh. C.P. Singh died on 31 st December, 1984. During his lifetime, late Sh. C.P. Singh did not initiate any legal proceedings alleging the said fraud in respect of the suit property. Since he did not take any action for the same, his legal heirs, after the expiry of 13 years since his demise, cannot claim any fraud having been committed upon them. The limitation period has to start from the time of knowledge of Sh. C.P. Singh and not from the legal representative of Sh. C.P. Singh.
20. The next contention of the Defendants is that Sh. C.P. Singh remained silent for almost 27 years i.e. between the period from 1957 to 1987 and now the question of fraud cannot be raised by the Plaintiffs. It is also argued that there is no question of transfer as the property was in CS (OS) No.1636/2005 Page 12 of 22 the name of M/s. C.P. Singh & Company, the partnership firm, of which Sh. C.P. Singh and defendant No.2 i.e. ICPL were the partners and subsequently on 5th August, 1957 Sh. C.P. Singh sold his share in the partnership firm to defendant No.2.
21. Since the lease deed was executed in the name of M/s. C.P. Singh & Company, the question of sale of property to the third party does not arise as the present case is a case where one partner of the partnership firm had sold his share in the partnership firm to another partner i.e. defendant No.2. The defendant No.2 is in possession and occupation of the suit property and is the legal owner and till his death Sh. C.P. Singh had never disputed the said ownership and occupation of defendant No.2.
22. Since during his lifetime he had never claimed any right in the suit property, thus, at this juncture the Plaintiffs who are claiming their right through late Sh. C.P. Singh cannot claim ownership. Therefore, the suit is barred by limitation and is liable to be dismissed.
23. In support of his submissions, the learned counsel for the defendant has referred to various judgments:
I. T. Arivandandam Vs. T.V. Satyapal and
another, AIR 1977 SC 2421
II. Malvika Madan Sehgal and Another Vs. M.M.
Sehgal Limited and Others, 65 (1997) DLT 381. III. Ajay Goel Vs. K.K. Bhandari and others, 1999 A I H C 1722.
IV. Raj Narain Sarin (Dead) Through Lrs. and Others Vs. Laxmi Devi and Others, (2002) 10 SCC 501.
V. N.V. Srinivasa Murthy and Others Vs.
Mariyamma (dead) by Proposed LRs and
CS (OS) No.1636/2005 Page 13 of 22
Others, JT 2005 (6) SC 1.
24. On the point of Section 90 of the Indian Evidence Act that the genuineness of the document cannot be challenged if it is thirty years old, the learned counsel for the defendant has referred the following judgments:
1. Parkash Chand and others Vs. Hans Raj and another, AIR 1994 Himachal Pradesh 144.
2. Liladhar Vs. Siaram and Another, AIR 1976 Allahabad 213.
3. Rao Raja Tej Singh and others Vs. Hastimal and others, AIR 1972 Rajasthan 191 (V 59 C 53).
4. Savitri Dei Vs. Bhaskar Bhuyan and others, AIR 1972 Orissa 148 (V 59 C 45).
5. Rajendra Prasad Bose Vs. Gopal Prasad Bose, 94 Indian Cases 1926 Page 814.
6. Ram Lal Kaviraj and Others Vs. Satya Niranjan Chakerverty and Others, 1920 Indian Cases 786.
7. Babu Nandan and others v. The Board of Revenue and others, AIR 1972 Allahabad 406 (V 59 C 108).
8. Gulamuddin s/o Hisamuddin, dead through LRs Vs., 2004 (3) Bom. C.R. 365.
25. I have heard the learned counsel for the parties. Mr. Sandeep Sethi, learned Senior Counsel for the Plaintiffs in his contention submits that the Suit must be allowed to run its full course in order to arrive at the conclusion as to whether the Suit filed by the Plaintiffs is maintainable or not. He argued that in view of the provisions of Code of Civil Procedure, 1908, the averments in the Plaint can be looked into and while reading the Plaint, in case the Court arrives at the conclusion that action is barred by limitation then the prayer sought by the defendants can be allowed.
26. As far as the cause of action is concerned, one has to see the prayer made in the suit while determining as to what would constitute the cause of action. The Supreme Court in the case of Om Prakash CS (OS) No.1636/2005 Page 14 of 22 Shrivastava Vs. Union of India, 2006 (6) SCC 207 observed in paras 12 and 13 as under:-
"12. The expression "cause of action" has sometimes been employed to convey the restricted idea of facts or circumstances which constitute either the infringement or the basis of a right and no more. In a wider and more comprehensive sense, it has been used to denote the whole bundle of material facts, which a Plaintiff must prove in order to succeed. These are all those essential facts without the proof of which the Plaintiff must fail in his suit. (See Gurdit Singh v. Munsha Singh : [1977]2SCR250 ).
13. The expression "cause of action" is generally understood to mean a situation or state of facts that entitles a party to maintain an action in a court or a tribunal; a group of operative facts giving rise to one or more bases of suing; a factual situation that entitles one person to obtain a remedy in court from another person. (See Black's Law Dictionary). In. Stroud's Judicial Dictionary a "cause of action" is stated to be the entire set of facts that gives rise to an enforceable claim; the phrase comprises every fact, which if traversed, the Plaintiff must prove in order to obtain judgment. In "Words and Phrases" (4 th Edn.) the meaning attributed to the phrase "cause of action" in common legal parlance is existence of those facts, which give a party a right to judicial interference on his behalf. (See Navinchandra N. Majithia v. State of Maharashtra and Ors. : AIR2000SC2966 )."
27. In view of the settled law on the subject-matter, I shall now examine the statements in the plaint to see whether it is liable to be rejected or not.
A. In para 3 of the plaint, the Plaintiffs have made the statement that on or about 22nd/23rd July, 1994, the Plaintiffs were informed by one of their lawyers handling their legal matters that there was some case pending in the High Court relating to their father and NDMC and the making an inquiry into the matter, the CS (OS) No.1636/2005 Page 15 of 22 Plaintiffs came to know that late Sh. C.P. Singh had acquired the suit property.
B. In para 3.3of the plaint, it is mentioned that on inquiry made in the Land and Development Office by the Plaintiffs on 27th February, 1995, the Plaintiffs came to know that the defendant No.1 had been dealing in the office as an attorney of late Sh. C.P. Singh and in his business name i.e. M/s. C.P. Singh and Company and the defendant No.5 had been dealing with defendant No.1 believing him to be the attorney of Sh. C.P. Singh and as the attorney of the firm.
C. Para 4 of the plaint reads as under:
4.1. That in July, 1949, the Late Shri C.P. Singh then resident of 18, Barakhamba Road, was granted in perpetuity, lease hold rights by the Governor General of India, acting through the Local Self Government, with respect to the piece of land then known as 124 Queen‟s way, New Delhi, comprising of 0.53 acres.
4.2. That the Governor General of India acting through Shri K.K. Sharma, Secretary (Local Self Government) to the Chief Commissioner of Delhi by the order and direction of the Governor General of India CS (OS) No.1636/2005 Page 16 of 22 executed in favour of Shri C.P. Singh, the Agreement for lease.
Alongwith the said Agreement for Lease Shri C.P. Singh and the Registrar of the Chief Commissioner of Delhi, signed a copy of the Perpetual Lease in acceptance of the terms and conditions relating to the grant of the Perpetual Lease hold rights with respect to the suit property 124, Queens way, which is now known as 124, Janpath, New Delhi and is herein referred to as the suit property.
The aforesaid original documents are now in the possession of the Plaintiffs and Annexures P-1 & P-2 are true photo copies of the same and the same may please be read as a part of this plaint.
4.3. That pursuant to the execution of the aforesaid documents the possession of the suit property was handed over to and taken over by late Shri C.P. Singh who was thereby vested with all rights of ownership, and came into possession of the suit property together with all the Lease-hold rights in perpetuity.
CS (OS) No.1636/2005 Page 17 of 22 4.4. That Shri C.P. Singh remained the owner in possession of the said property till his death on 31.12.1984, whereupon the Plaintiffs as the surviving legal heirs inherited all the rights, title and interests in the suit property. Shri C.P. died intestate.
4.5. That the Defendants have intentionally suppressed the fact of Sh. C.P. Singh‟s death from the L & D O. D. In para 6 of the plaint, it is stated that after coming to know in February, 1995, the Plaintiffs served a legal notice dated 14th February, 1996 to the defendant No.1 and in response to the said notice the defendant No.1 sent the reply dated 23rd February, 1996 wherein it was mentioned that on 5th August, 1957 Sh. C.P. Singh had sold his interest in M/s. C.P. Singh and Company to the defendant No.2 M/s. Indian City Properties Ltd. and the lease deed admittedly was not singed by Sh. C.P. Singh but was signed by Sh. I.S. Anand on behalf of M/s. C.P. Singh and Company.
E. In para 7 of the plaint, it is stated that there was no request of late Sh. C.P. Singh to the defendant No.5 for the execution of the deed of perpetual lease in favour of defendant No.4.
CS (OS) No.1636/2005 Page 18 of 22 F. In para 8 of the plaint, it is stated that as per Annexures 1 & 2 executed between late Sh. C.P. Singh and the Governor General of India, Sh. C.P. Singh had fully paid the sale consideration amount to the Government and against the said consideration the possession thereof was handed over in full to Sh. C.P.Singh and he was granted the lease-hold rights in perpetual to the suit property. As per the agreement, late Sh. C.P. Singh could not have transferred his right in the suit property without prior consent of the lessor i.e. defendant No.5. Nor defendant No.5 ever granted any permission to Sh. C.P. Singh or any one else to transfer the suit property or his right. It is contended that the said partnership appears to have been formulated under the name and style of M/s. C.P. Singh and Company i.e. defendant No.4 and real object of the defendant appears to have been to transfer the suit property by circumvent with by the various provisions of law. It is also alleged that the partnership was illegal and fraudulent and therefore, it could not have been any legal or valid assignment in favour of defendant No.4.
G. In para 10 of the plaint, it is also stated that the defendant No.1 as attorney of M/s. C.P. Singh & Company does not have the right to act as an agent and CS (OS) No.1636/2005 Page 19 of 22 representative of late Sh. C.P. Singh and therefore, the defendants No.5 & 6 have been misled into acting in granting permissions/approvals and sanctions and they acted by mistake on account of misrepresentation and by suppression of material fact by the defendants.
28. After examination of the averments made in the plaint and documents, it appears to this Court that prima facie no inference can be drawn from the documents filed by the Defendants in order to show that late Sh. C.P. Singh had ever admitted his partnership with the defendant No.2 before the defendant No.5 or had written any letter under his signature informing the defendant No.5 in this regard. There is also no cogent material on record to show that late Sh. C.P. Singh or the Plaintiff herein had knowledge before his death about the transfer of his share in favour of the defendant No.2 in the firm of defendant No.4 or had any knowledge about the giving up of his right before defendant No.5. Thus this Court is of the view that all these questions can be answered when the parties will lead their evidence as per their contentions.
29. In para 4 of the Plaint, it is mentioned that Plaintiffs (the legal representatives of late Sh. C.P. Singh) have made the specific statement that Sh. C.P. Singh remained the owner and in possession of the suit property till his death on 31 st December, 1984. On the other hand, the Defendants are claiming that after the execution of the lease CS (OS) No.1636/2005 Page 20 of 22 deed from the office of defendant No.5, the defendant No.2 constructed the suit property on the land known as Thapar House.
30. The Plaintiffs in the Plaint have specifically stated that late Sh. C.P. Singh was the owner of the property and were not aware about the execution of the lease deed and late Sh. C.P. Singh never sold his share in favour of the partnership business M/s. C.P. Singh & Company in favour of defendant No.2. Though the Defendants are alleging that late Sh. C.P. Singh during his life time never claimed any right or title in M/s. C.P. Singh & Company.
31. In the cause of action paragraph it is stated by the plaintiffs that the cause of action accrued in or about January/February 1995 for the first time when the Plaintiffs came to know about the fraud committed by the defendants No.1 to 4. The defendants on the other side have pleaded that late Sh. C.P. Singh did not raise any objection for more than 27 years when the property was leased in favour of defendant No.4 and before that late Sh. C.P. Singh already sold his share to defendant No.2.
32. No doubt, in case the averments made by the Defendants in the written statement are proved to be true then the suit is definitely barred by limitation and is not maintainable. But in the present case the plaintiffs have made the specific statements to the effect that they first time came to know about the said suit property in the month of July, 1995 and also details as regards the alleged fraud committed by the defendants in the Office of Land and Development in the year 1995 and CS (OS) No.1636/2005 Page 21 of 22 the suit was filed in the year 1997 which is within time after having the information.
33. Admission/denial in this matter is already complete. The matter will go for trial after framing of issues. Therefore, without going into the merit of the case, I am of the considered view that trial in the present case is necessary in order to determine the rival pleas made by the parties.
34. After considering the entire gamut of the matter, this Court is not inclined to allow the present application. The same is dismissed with the direction that the proceedings in the suit be expedited as the suit was originally filed in the year 1997.
CS(OS) No. 1636/2005
35. List before the Court for framing of issues on 17th March, 2010.
MANMOHAN SINGH, J.
FEBRUARY 25, 2010 dp/jk CS (OS) No.1636/2005 Page 22 of 22