Delhi District Court
Sh. Arvinder Singh vs Smt. Satwant Kaur on 13 March, 2020
RCA No.:15/2018 Arvinder Singh v. Satwant Kaur & Ors. DOD : 13.03.2020
: IN THE COURT OF :
DR. V.K. DAHIYA
ADDITIONAL DISTRICT JUDGE01:
SOUTHWEST DISTRICT: DWARKA COURTS:
NEW DELHI
Regular Civil Appeal No. 15 / 2018
In the matter of:
Sh. Arvinder Singh
S/o Late Sardar Rattan Singh
R/o E151B, Ashok ViharI,
New Delhi 110052
.....Appellant
Versus
1. Smt. Satwant Kaur,
W/o Late Sardar Rattan Singh
R/o E151B, Ashok ViharI,
New Delhi 110052
2. The Delhi Transporters Cooperative Group Housing Society Ltd.
Plot No. 2, Sector 2, Phase I,
Dwarka, New Delhi 110052
3. The Delhi Development Authority,
Through its Vice Chairman,
Vikas Sadan, INA
New Delhi
....Respondents
Page No. 1 of 25
RCA No.:15/2018 Arvinder Singh v. Satwant Kaur & Ors. DOD : 13.03.2020
Date of Institution of Appeal : 25.08.2018
Date of reserving Order : 13.03.2020
Date of pronouncement : 13.03.2020
REGULAR CIVIL APPEAL AGAINST THE ORDER DATED 16.07.2018
PASSED BY LD. SCJ/RC, SOUTH WEST DISTRICT,
DWARKA COURTS.
J U D G M E N T:
1. The present appeal has been preferred against the impugned judgment / decree dated 16.07.2018 passed by Ld Trial Court whereby the plaint has been rejected. Appellant / plaintiff and respondent / defendant are hereinafter referred to as plaintiff and defendant as per their litigative status before Ld Trial Court.
2. Brief facts relevant for disposal of this appeal are like this :
i) Sardar Rattan Singh was having a membership no. 34 in the society namely 'The Delhi Transporter's CGHS' at plot no. 2, Sector2, PhaseI, Dwarka, New Delhi110075 and in terms of the said membership flat No. 1073 Joy Apartments, Plot NO. 2, Sector 2, PhaseI Dwarka, New Delhi was allotted to defendant no.1 (hereinafter referred to as the said flat). The said Sardar Rattan Singh (hereinafter referred to as the deceased) died on 08.07.2001 leaving behind his wife Smt. Satwant Kaur (defendant no. 1), two sons namely Sh. Arvinder Singh (plaintiff) and Sh.
Rajinder Singh and five daughters namely Ms. Manjeet Kaur, Ms. Page No. 2 of 25 RCA No.:15/2018 Arvinder Singh v. Satwant Kaur & Ors. DOD : 13.03.2020 Jasmeet Kaur, Ms. Sarabjeet Kaur, Ms Kawaljeet Kaur and Ms. Ranjeet Kaur as his LRs.
ii) The deceased had deposited a sum of Rs. 3 lakhs with defendant no. 2 and, thereafter, plaintiff on the request of defendant no. 1 had been paying the demand regarding installment of the said flat raised by defendant no. 2, with the assurance given by defendant no. 1 that the said flat would be transferred in the name of plaintiff.
iii) After death of deceased, the defendant no. 2 substituted the name of defendant no. 1 as its member in his place on 07.04.2004. Thereafter, defendant no. 1 received a letter from Registrar of Cooperative Society as to why the name of defendant no. 1 should not be expelled from the society / defendant no. 2 on the basis of persistent default in payment of outstanding dues in respect of the said flat payable to defendant no. 2.
iv) The defendant no. 1 approached plaintiff and requested to arrange the amount to meet the demand raised by defendant no. 2 and the plaintiff paid an amount of Rs. 23 lakhs to defendant no. 2 from the period 2001 to 2012 i.e till the date of handing over of possession of the said flat.
v) The defendant no. 1 in pursuant of her assurance given to plaintiff, had executed various documents of transfer of membership of the said flat in the name of plaintiff and defendant Page No. 3 of 25 RCA No.:15/2018 Arvinder Singh v. Satwant Kaur & Ors. DOD : 13.03.2020 no. 1 further requested defendant no. 2 through various documents that the said flat be transferred in the name of plaintiff. The defendant no. 1 was not supposed to execute any other document except the documents so submitted by the plaintiff to defendant no. 2, as per the policy of defendant no. 3 / DDA. However, the plaintiff approached defendant no. 2 for transfer of membership of the said flat in his name but the plaintiff was always informed by the officials of defendant no. 2 that after draw and allotment of the said flat the request of plaintiff would be considered.
vi) Thereafter, defendant no. 2 and 3 allotted the said flat bearing flat no. 1073 in the name of defendant no. 1 in the year 2012, in the presence of plaintiff, in the draw held in the office of defendant no. 3. The plaintiff approached the office of defendant no. 2 to transfer the said flat in the name of plaintiff, but the officials of defendant no. 2 informed plaintiff to come alongwith defendant no. 1 for the purpose of transfer of membership of said flat but defendant no. 1 has not come forward to transfer the said flat in the name of plaintiff, otherwise, defendant no. 1 has sought time for the said purpose on one pretext or the other.
vii) In the month of March 2013, the plaintiff came to know that the defendant no. 1 was trying to get NOC for conversion of the said flat from lease hold to free hold in her own name. The plaintiff filed written objections on 22.03.2013 in the office of defendant no. 2 and defendant no. 2 informed plaintiff to produce stay order from Page No. 4 of 25 RCA No.:15/2018 Arvinder Singh v. Satwant Kaur & Ors. DOD : 13.03.2020 the court to establish his right in the said flat.
viii) The plaintiff has made the entire payment of the sale consideration of the said flat to defendant no. 2, on the assurance of defendant no. 1, that she would transfer the membership of the said flat in favour of plaintiff; and after having executed the necessary documents in favour of plaintiff, defendant no. 2 cannot refuse from transferring the membership of the said flat in the name of plaintiff. Otherwise also, defendant no. 2 is not entitled to issue NOC in favour of defendant no. 1 for conversion of the said flat from lease hold to free hold and in these circumstances the plaintiff prayed for issuance of mandatory injunction by way of the suit.
ix) Defendants were duly served with summons for settlement of issues and the defendant no. 1 filed written statement interalia, submitting that defendant no. 2 is governed by Delhi Cooperative Societies Act, 2003 and by virtue of Section 79 of the said Act the suit is not maintainable in as much as no notice has been delivered to the office of Registrar. In addition to it, the suit is not maintainable by virtue of Section 70 of the said Act which provides for resolution of the dispute by way of arbitration. The suit is bad for nonjoinder of necessary parties. The suit is liable to be dismissed on the ground of fraud being played upon the defendant no. 1 by plaintiff and got prepared the documents the contents of which were not known to defendant no. 1. The plaintiff has filed the indemnity bond dated 28.12.2007 claiming to be a member of Page No. 5 of 25 RCA No.:15/2018 Arvinder Singh v. Satwant Kaur & Ors. DOD : 13.03.2020 the cooperative society/defendant no. 2, however, the said membership is in the name of defendant no. 1.
x) The deceased had deposited part payment of about Rs. 3.25 lakhs in respect of membership of the said flat and after his death, defendant no. 1 has deposited the balance amount with defendant no. 2 from her own income. The plaintiff has never paid any single penny for part payment of sale consideration of said flat as alleged. The entire payment of sale consideration of Rs. 25 lakhs for purchase of the said flat has either been paid by deceased or by defendant no. 1. The plaintiff has no right, title or interest either in the membership or in the ownership of the said flat and, therefore, there is no question of defendant no. 1 approaching defendant no. 2 for transfer of membership of the said flat in the name of plaintiff.
xi) The defendant no. 1 was nominee of the deceased and after death of the deceased, defendant no. 1 stands substituted in his place as a member of the said society/defendant no. 2. The said flat was allotted on 13.02.2012 in the name of defendant no. 1 in the presence of plaintiff. The defendant no. 1 has no knowledge regarding the written objections send by plaintiff to defendant no. 2 in respect of draw and allotment of the said flat in the name of defendant no. 1. The defendant no. 1 is entitled to seek NOC from defendant no. 3 for conversion of the said flat from lease hold to free hold.
Page No. 6 of 25RCA No.:15/2018 Arvinder Singh v. Satwant Kaur & Ors. DOD : 13.03.2020
xii) The defendant no. 3 filed written statement and, interalia, contended that the name of defendant no. 1 was at serial no. 2 in the list of draw of lot in as much as defendant no. 1 was having membership no. 34 with defendant no. 2 in respect of the said flat and the said flat was allotted to defendant no. 1 and the plaintiff did not file any objections to the draw of lot, which was conducted by defendant no. 3 in the presence of plaintiff. The membership of defendant no. 1 was recommended by RCS vide letter dated 29.09.2011 and allotment of the said flat in the name of defendant no. 1 is as per rules and regulations.
xiii) The plaintiff filed replication to the written statement filed by defendants and controverted each and every allegation levelled in the written statements and reiterated the averments made in the plaint.
xiv) Thereafter, the defendant no. 1 filed application U/o 7 Rule 11 CPC and, interalia, submitted that there is no cause of action in favour of plaintiff to file the present suit as the plaintiff is neither the owner of the said flat nor he is in possession thereof. The plaintiff has filed the suit for permanent injunction against defendant no. 2 seeking direction for non issuance of NOC in favour of defendant no. 1 for conversion of the said flat from lease hold to free hold. The said suit is barred by law and not maintainable in as much as the simplicitor suit for injunction is not maintainable in view of the mandate of provision of Section 34 of Page No. 7 of 25 RCA No.:15/2018 Arvinder Singh v. Satwant Kaur & Ors. DOD : 13.03.2020 Specific Relief Act. The plaintiff is not the owner, therefore, without seeking any declaration, no such suit for injunction is maintainable. The documents filed by plaintiff have been forged and fabricated, otherwise, the said documents did not create any right, title or interest in favour of plaintiff.
xv) The plaintiff has claimed that he has paid the consideration for purchase the said flat, however, there is no document on record that any such installment for payment of remaining sale consideration has been paid by the plaintiff either in cash or by way of bank transaction, therefore, there is no cause of action in favour of plaintiff and the plaint should be rejected.
xvi) The plaintiff filed reply to this application and, interalia, submitted that the plaintiff has moved an application for amendment of the plaint and the plaintiff has sought to plead for non performance of the assurance given by defendant no. 1 in as much as despite execution of the various documents for approval and transfer of the membership of the said flat in the name of plaintiff, by defendant no. 1; defendant no. 1 did not come forward to get transferred the said membership in the name of plaintiff. The said sale documents met all the requirements of transfer of membership of the said flat in the name of plaintiff as per policy of defendant no. 3 which did not require execution of any other document besides the documents executed by defendant no. 1 in favour of the plaintiff.
Page No. 8 of 25RCA No.:15/2018 Arvinder Singh v. Satwant Kaur & Ors. DOD : 13.03.2020 xvii) The defendant no. 2, despite the request of plaintiff, has failed to transfer the membership of the said flat in the name of plaintiff. No ground is made out to entertain this application for rejection of plaint in as much as from bare perusal of the plaint there is, prima facie, accrual of cause of action in favour of plaintiff, otherwise also, at the stage of consideration of application for rejection of plaint only the averments and documents annexed with the plaint are to be seen and defence of defendants could not be taken into consideration. The application filed by the defendant is frivolous in as much as the plaint is not to be rejected by virtue of Section 34 of Specific Relief Act because the ownership of the plaintiff in respect of the said flat has never been under clouds so much so that the sale documents for transfer of the said flat have already been executed by defendant no. 1 in favour of plaintiff. The allegation of defendant no. 1 is that the said sale documents have been got forged and fabricated by the plaintiff and, even if, it is presumed that this allegation to be true for the sake of arguments, this allegation cannot be adjudicated upon while disposing of the application U/o 7 Rule 11 CPC, otherwise, the said allegation needs to be adjudicated upon after full fledged trial.
xviii) The defendant no. 1 has admitted in clear, unequivocal and unambiguous terms that the plaintiff has discharged the financial liability towards the purchase of the said flat apart from the fact that defendant no. 1 has already executed the relevant transfer documents in favour of plaintiff for transfer of membership of the said flat in his name and, furthermore, on the basis of such Page No. 9 of 25 RCA No.:15/2018 Arvinder Singh v. Satwant Kaur & Ors. DOD : 13.03.2020 transfer/sale documents the defendant no. 2 has already transferred the membership of other remaining occupants / members of defendant no. 2. This application is, therefore, prayed to be dismissed.
xix) During the course of arguments, Ld counsel for plaintiff has contended that after the death of deceased, the plaintiff being one of the LR was having his oneeighth share in the said flat as per Hindu Succession Act and the defendant no. 1 being nominee of the deceased is answerable to all the LRs of deceased as per the law laid down by the superior courts. In this regard he has relied upon the judgment titled as 'Indrani Wahi Vs Registrar of Coop. Societies & Ors.' AIR 2016 SC 1969. He further argued that there is no need to seek declaration as contended by defendant no. 1 in as much as transfer documents in respect of the said flat have aleady been executed by defendant no. 1 in favour of plaintiff and therefore, suit for injunction is very much maintainable.
xx) Per contra, Ld counsel for defendant no. 1 has contended that, viewed from any angle, the plaintiff cannot claim to be the owner of the said flat, even if, the alleged transfer documents executed by defendant no. 1 are considered to be not false and fabricated, as those alleged sale documents are not registered one as per law and on the basis of those documents no transfer of the said flat is permissible under law. He further contended that title of the plaintiff is under cloud, therefore, plaintiff is not entitled to seek injunction without seeking declaration in respect of title of the said Page No. 10 of 25 RCA No.:15/2018 Arvinder Singh v. Satwant Kaur & Ors. DOD : 13.03.2020 flat, therefore, simple suit of injunction is not maintainable as per the mandate of law. He further submitted that the present suit is frivolous one filed only to harass the defendant no. 1 being mother of plaintiff who happened to be a senior citizen. Otherwise also, the suit filed by plaintiff is barred by limitation. This suit is frivolous and therefore, the plaint deserves to be rejected. In this regard he has relied upon the judgment titled as 'Raghwendra Sharan Singh Vs Ram Prasanna Singh' arising out of SLP (C) No. 20068 of 2013 passed by Hon'ble Supreme Court.
3. I have heard ld. Counsel for the parties and have gone through the record.
4. At the very outset it is required to be noted that the plaintiff had instituted the suit against the defendants with the following reliefs :
a) Pass a decree of permanent injunction thereby directing against the defendant no. 2 from issuing NOC in favour of and further directing defendant no. 3 from converging the Flat No. 1073, Joy Apartment, Plot No. 2, Sector 2, Phase - I, Dwarka, New Delhi 110075 from lease hold to free hold in favour of defendant no. 1.
b) Pass a decree of permanent injunction thereby directing against the defendants no. 1 from selling, transferring, alienating, parting with the possession or creating any third party interest in respect of Flat No. 1073, Joy Apartment, Plot No. 2, Sector 2, Phase - I, Dwarka, New Delhi 110075.
c) Pass a decree of mandatory injunction against defendant no.2 thereby directing them to transfer the membership no. 34 in favour of plaintiff on the basis of the documents executed by defendant no. 1 in favour of the plaintiff.Page No. 11 of 25
RCA No.:15/2018 Arvinder Singh v. Satwant Kaur & Ors. DOD : 13.03.2020
d) Pass any other order/direction in favour of the plaintiff and against the defendants as this Hon'ble Court may deem fit and proper in the facts and circumstances of the case.
5. Considering the averments in the plaint, it can be seen that the deceased left behind legal heirs including the plaintiff, however, defendant no. 1, mother of the plaintiff was inducted as a Member of defendant no. 2 being nominee of the deceased without any objection and thereafter, defendant no. 1 received a notice dated 24.02.2005 as to why the name of defendant no.1 be expelled from the Membership of defendant no. 2 for persistent default in payment of the installment due to defendant no. 2 and plaintiff allegedly on request of defendant no. 2 deposited an amount of Rs. 23 lakhs in between the years 20012010.
6. It is further averred that defendant no. 1 has transferred the membership in the name of plaintiff through transfer document dated 28.12.2007 and, thereafter plaintiff approached defendant no.2 to transfer the said membership in the name of plaintiff on 29.03.2008. The defendant no. 2 through letter dated 10.09.2008 informed defendant no. 1 that her name has been withheld for draw of lots on account of arrears of due payable in respect of said flat however, the name of defendant no. 1 was cleared for allotment of flat and defendant no.3 allotted the said flat in the name of defendant no. 1 on the draw held on 13.03.2012 and thereafter, defendant no.1 got possession of the said flat. Thereafter, defendant no. 1 approached defendant no. 3 for getting the said flat converted from lease hold to free hold.
Page No. 12 of 25RCA No.:15/2018 Arvinder Singh v. Satwant Kaur & Ors. DOD : 13.03.2020
7. The Ld. Trial court had framed the issues and thereafter, the application under Order 7 Rule 11 CPC was moved which was lateron allowed by Ld. Trial Court through the impugned judgment.
8. Before proceeding further this court would like to reproduce settled principles with regard to the consideration of the scope and ambit of the provision under order 7 rule 11 CPC and in case law Raghwendra Sharan Singh (supra), it has been held as under :
"6.3 In the case of T. Arivandandam (supra), while considering the very same provision i.e. Order 7 Rule 11 of the CPC and the decree of the trial Court in considering such application, this Court in para 5 has observed and held as under:
"5. We have not the slightest hesitation in condemning the petitioner for the gross abuse of the process of the court repeatedly and unrepentently resorted to. From the statement of the facts found in the judgment of the High Court, it is perfectly plain that the suit now pending before the First Munsif's Court, Bangalore, is a flagrant misuse of the mercies of the law in receiving plaints. The learned Munsif must remember that if on a meaningful -- not formal -- reading of the plaint it is manifestly vexatious, and meritless, in the sense of not disclosing a clear right to sue, he should exercise his power under Order 7, Rule 11 CPC taking care to see that the ground mentioned therein is fulfilled. And, if clever drafting has created the illusion of a cause of action, nip it in the bud at the first hearing by examining the party searchingly under Order 10, CPC. An activist Judge is the answer to irresponsible law suits....."
6.4 In the case of Church of Christ Charitable Trust and Educational Charitable Society (supra), this Court in paras 13 has observed and held as under:
"13. While scrutinizing the plaint averments, it is the bounden duty of the trial Court to ascertain the materials for cause of action. The cause of action is a bundle of facts which taken with the law applicable to them gives the Plaintiff the right to relief against the Defendant. Every fact which is necessary for the Plaintiff to prove to enable him to get a decree should be set out in clear terms. It is Page No. 13 of 25 RCA No.:15/2018 Arvinder Singh v. Satwant Kaur & Ors. DOD : 13.03.2020 worthwhile to find out the meaning of the words "cause of action".
A cause of action must include some act done by the Defendant since in the absence of such an act no cause of action can possibly accrue."
6.5 In A.B.C. Laminart Pvt. Ltd. v. A.P. Agencies, Salem (supra), this Court explained the meaning of "cause of action" as follows:
"12. A cause of action means every fact, which if traversed, it would be necessary for the plaintiff to prove in order to support his right to a judgment of the court. In other words, it is a bundle of facts which taken with the law applicable to them gives the plaintiff a right to relief against the defendant. It must include some act done by the defendant since in the absence of such an act no cause of action can possibly accrue. It is not limited to the actual infringement of the right sued on but includes all the material facts on which it is founded. It does not comprise evidence necessary to prove such facts, but every fact necessary for the plaintiff to prove to enable him to obtain a decree. Everything which if not proved would give the defendant a right to immediate judgment must be part of the cause of action. But it has no relation whatever to the defence which may be set up by the defendant nor does it depend upon the character of the relief prayed for by the plaintiff."
6.6 In the case of Sopan Sukhdeo Sable (supra) in paras 11 and 12, this Court has observed as under:
"11. In I.T.C. Ltd. v. Debts Recovery Appellate Tribunal[(1998) 2 SCC 70] it was held that the basic question to be decided while dealing with an application filed under Order 7 Rule 11 of the Code is whether a real cause of action has been set out in the plaint or something purely illusory has been stated with a view to get out of Order 7 Rule 11 of the Code.
12. The trial court must remember that if on a meaningful and not formal reading of the plaint it is manifestly vexatious and meritless in the sense of not disclosing a clear right to sue, it should exercise the power under Order 7 Rule 11 of the Code taking care to see that the ground mentioned therein is fulfilled. If clever drafting has created the illusion of a cause of action, it has to be nipped in the bud at the first hearing by examining the party searchingly under Order 10 of the Code. (See T. Arivandandam v. T.V.Satyapal (supra)."
6.7 In the case of Madanuri Sri Rama Chandra Murthy (supra), this Court has observed and held as under:
Page No. 14 of 25RCA No.:15/2018 Arvinder Singh v. Satwant Kaur & Ors. DOD : 13.03.2020
"7. The plaint can be rejected under Order 7 Rule 11 if conditions enumerated in the said provision are fulfilled. It is needless to observe that the power under Order 7 Rule 11 CPC can be exercised by the Court at any stage of the suit. The relevant facts which need to be looked into for deciding the application are the averments of the plaint only. If on an entire and meaningful reading of the plaint, it is found that the suit is manifestly vexatious and meritless in the sense of not disclosing any right to sue, the court should exercise power under Order 7 Rule 11 CPC. Since the power conferred on the Court to terminate civil action at the threshold is drastic, the conditions enumerated under Order 7 Rule 11 CPC to the exercise of power of rejection of plaint have to be strictly adhered to. The averments of the plaint have to be read as a whole to find out whether the averments disclose a cause of action or whether the suit is barred by any law. It is needless to observe that the question as to whether the suit is barred by any law, would always depend upon the facts and circumstances of each case. The averments in the written statement as well as the contentions of the defendant are wholly immaterial while considering the prayer of the defendant for rejection of the plaint.
Even when the allegations made in the plaint are taken to be correct as a whole on their face value, if they show that the suit is barred by any law, or do not disclose cause of action, the application for rejection of plaint can be entertained and the power under Order 7 Rule 11 CPC can be exercised. If clever drafting of the plaint has created the illusion of a cause of action, the court will nip it in the bud at the earliest so that bogus litigation will end at the earlier stage."
9. With the above said principles of law in mind this court would like to advert to the facts of the present case. It may be noted that the plaintiff along with the plaint has filed a number of documents running into 32 pages, which includes the letter dated 19.03.2008 issued by defendant no. 1 to the President of Society/defendant no.2 the relevant portion of the same reads as under :
".....Sub : Transfer of Membership No. 34, in the name of Shri. Arvinder Singh son of Late Shri Rattan Singh D/Sir, Page No. 15 of 25 RCA No.:15/2018 Arvinder Singh v. Satwant Kaur & Ors. DOD : 13.03.2020 I am to state that the Membership No. 34, was initially in the name of my Husband Sh. Rattan Singh, after his death it was transferred in my name being his nominee. After his death all the dues were paid by my Son Sh. Arvinder Singh as I am living with him, I have no source of Income to pay dues to the society, as such I want to transfer the membership in the name of my Son Sh. Arvinder Singh aged 36 years with my own wish.
....."
Along with this letter an indemnity bond dated 28.12.2007 has also been executed by defendant no.1, in favour of plaintiff whereby defendant no. 1 had intended to transfer her membership no. 34 registered with defendant no. 2 in favour of plaintiff. Apart from these two documents one affidavit has also been filed namely affidavit of defendant no. 1 whereby she intended to transfer above said membership in the name of plaintiff. At the very outset, it may be noted that none of the documents placed on record by the plaintiff are registered and on the basis of these transfer/sale documents no immovable property or interest therein can be transferred. It may also be relevant to mention here that all the receipts vide which the payment of all the installments /consideration has been paid to defendant no. 2 are either issued in the name of the deceased or defendant no. 1 and no receipt has been issued in the name of plaintiff except some bank transactions through which some part of sale consideration of the said flat was transferred to defendant no. 2. Admittedly, the possession of the said flat is with defendant no.1. It is admitted case of plaintiff that defendant no. 1 having executed the abovesaid transfer documents in favour of plaintiff failed to appear before defendant no. 2 for transfer of the membership of the said flat in favour of plaintiff, therefore, it can be safely concluded that the ownership of Page No. 16 of 25 RCA No.:15/2018 Arvinder Singh v. Satwant Kaur & Ors. DOD : 13.03.2020 said flat was never transferred in the name of plaintiff.
10. It may be relevant to note here that plaintiff has sought a permanent injunction restraining defendant no. 2 from issuing NOC in favour of defendant no. 1 and further restraining defendant no. 3 from conversion of the said flat from lease hold to free hold. Plaintiff has also sought a decree of mandatory injunction against defendant no. 2 with directions to defendant no. 2 to transfer the membership no. 34 in favour of the plaintiff on the basis of transfer documents executed by defendant no. 1 in favour of the plaintiff.
11. The Ld. Trial Court has rejected the plaint on the basis of the law laid down in Anathula Sudhakar v. P. Buchi reddy in 2008 (4) SCC 594, that plaintiff is seeking the relief of injunction without seeking the relief of declaration and as such the suit is not maintainable.
12. Before proceeding further I would like to cite the judgment passed by Hon'ble High Court of Delhi in Dhani Ram @ Kale & Anr. v. Mohd. Faisal & Anr. in RFA No. 982/2016, wherein the ratio of Anathulla Sudhakar (supra) has been reiterated in para no. 6 of the judgment which is reproduced as under :
"XXXX....
6. Before turning to these two aspects to be decided, the law with respect to grant of injunction, pleading possession and ownership of an immovable property, is required to be noted Page No. 17 of 25 RCA No.:15/2018 Arvinder Singh v. Satwant Kaur & Ors. DOD : 13.03.2020 and which is exhaustively stated in the judgment of the Supreme Court in the case of Anathula Sudhakar Vs. P. Buchi Reddy (Dead) by LRs. and Others (2008) 4 SCC 594, and the relevant paras of which judgment are paras 13 to 21, and the same read as under:
13. The general principles as to when a mere suit for permanent injunction will lie, and when it is necessary to file a suit for declaration and/or possession with injunction as a consequential relief, are well settled. We may refer to them briefly.
13.1. Where a plaintiff is in lawful or peaceful possession of a property and such possession is interfered or threatened by the defendant, a suit for an injunction simpliciter will lie. A person has a right to protect his possession against any person who does not prove a better title by seeking a prohibitory injunction. But a person in wrongful possession is not entitled to an injunction against the rightful owner.
13.2. Where the title of the plaintiff is not disputed, but he is not in possession, his remedy is to file a suit for possession and seek in addition, if necessary, an injunction. A person out of possession, cannot seek the relief of injunction simpliciter, without claiming the relief of possession.
13.3. Where the plaintiff is in possession, but his title to the property is in dispute, or under a cloud, or where the defendant asserts title thereto and there is also a threat of dispossession from defendant, the plaintiff will have to sue for declaration of title and the consequential relief of injunction. Where the title of plaintiff is under a cloud or in dispute and he is not in possession or not able to establish possession, necessarily the plaintiff will have to file a suit for declaration, possession and injunction.
14. We may however clarify that a prayer for declaration will be necessary only if the denial of title by the defendant or challenge to plaintiff's title raises a cloud on the title of plaintiff to the property. A cloud is said to raise over a person's title, when some apparent defect in his title to a property, or when some prima facie right of a third party over it, is made out or shown. An action for declaration, is the remedy to remove the cloud on the title to the property. On the other hand, where the plaintiff has clear title supported by documents, if a trespasser without any claim to title or an interloper without any apparent title, merely denies the plaintiff's title, it does not amount to Page No. 18 of 25 RCA No.:15/2018 Arvinder Singh v. Satwant Kaur & Ors. DOD : 13.03.2020 raising a cloud over the title of the plaintiff and it will not be necessary for the plaintiff to sue for declaration and a suit for injunction may be sufficient. Where the plaintiff, believing that defendant is only a trespasser or a wrongful claimant without title, files a mere suit for injunction, and in such a suit, the defendant discloses in his defence the details of the right or title claimed by him, which raises a serious dispute or cloud over plaintiff's title, then there is a need for the plaintiff, to amend the plaint and convert the suit into one for declaration. Alternatively, he may withdraw the suit for bare injunction, with permission of the court to file a comprehensive suit for declaration and injunction. He may file the suit for declaration with consequential relief, even after the suit for injunction is dismissed, where the suit raised only the issue of possession and not any issue of title.
15. In a suit for permanent injunction to restrain the defendant from interfering with plaintiff's possession, the plaintiff will have to establish that as on the date of the suit he was in lawful possession of the suit property and defendant tried to interfere or disturb such lawful possession. Where the property is a building or building with appurtenant land, there may not be much difficulty in establishing possession. The plaintiff may prove physical or lawful possession, either of himself or by him through his family members or agents or lessees/licensees. Even in respect of a land without structures, as for example an agricultural land, possession may be established with reference to the actual use and cultivation. The question of title is not in issue in such a suit, though it may arise incidentally or collaterally.
XXXXX
21. To summarise, the position in regard to suits for prohibitory injunction relating to immovable property, is as under: (a) Where a cloud is raised over plaintiff's title and he does not have possession, a suit for declaration and possession, with or without a consequential injunction, is the remedy. Where the plaintiff's title is not in dispute or under a cloud, but he is out of possession, he has to sue for possession with a consequential injunction. Where there is merely an interference with plaintiff's lawful possession or threat of dispossession, it is sufficient to sue for an injunction simpliciter. (b) As a suit for injunction simpliciter is concerned only with possession, normally the issue of title will not be directly and substantially in issue. The prayer for injunction will be decided with reference to the finding Page No. 19 of 25 RCA No.:15/2018 Arvinder Singh v. Satwant Kaur & Ors. DOD : 13.03.2020 on possession. But in cases where de jure possession has to be established on the basis of title to the property, as in the case of vacant sites, the issue of title may directly and substantially arise for consideration, as without a finding thereon, it will not be possible to decide the issue of possession. (c) But a finding on title cannot be recorded in a suit for injunction, unless there are necessary pleadings and appropriate issue regarding title (either specific, or implied as noticed in Annaimuthu Thevar). Where the averments regarding title are absent in a plaint and where there is no issue relating to title, the court will not investigate or examine or render a finding on a question of title, in a suit for injunction. Even where there are necessary pleadings and issue, if the matter involves complicated questions of fact and law relating to title, the court will relegate the parties to the remedy by way of comprehensive suit for declaration of title, instead of deciding the issue in a suit for mere injunction. (d) Where there are necessary pleadings regarding title, and appropriate issue relating to title on which parties lead evidence, if the matter involved is simple and straightforward, the court may decide upon the issue regarding title, even in a suit for injunction. But such cases, are the exception to the normal rule that question of title will not be decided in suits for injunction. But persons having clear title and possession suing for injunction, should not be driven to the costlier and more cumbersome remedy of a suit for declaration, merely because some meddler vexatiously or wrongfully makes a claim or tries to encroach upon his property. The court should use its discretion carefully to identify cases where it will enquire into title and cases where it will refer to plaintiff to a more comprehensive declaratory suit, depending upon the facts of the case."
13. It may be noted that the distinction between a suit for specific performance and a suit for injunction has been succinctly interpreted by Hon'ble High Court in Mujeeb Rehman v. Mohd. Nabi, 2017 SCC Online Del 11393, in para 28 which is as under:
"The legislature, while enacting the same Act, cannot be assumed to have created the anomaly aforesaid. They only way, in my opinion to interpret the aforesaid two chapters of Page No. 20 of 25 RCA No.:15/2018 Arvinder Singh v. Satwant Kaur & Ors. DOD : 13.03.2020 the Specific Relief Act, by applying the principles of interpretation of statutes of "a construction giving rise to the anomalies should be avoided" and "avoiding uncertainty and friction in the system which the statute purports to regulate", is by holding that the obligations, to prevent breach whereof performance of certain acts can be compelled by issuing a decree for mandatory injunction, are obligations in law, other than those under a contract. If the obligation is under a contract and performance of certain acts which the defendant has undertaken to do under the contract, has to be compelled, the remedy to be invoked would have to be under the Chapter relating to the specific performance of contracts and not under the Chapter of mandatory injunction.
14. A bare perusal of the abovesaid paras of the Dhani Ram's case, it is crystal clear that ratio of the Anathulla (supra) was reiterated in the abovesaid judgment and the said ratio is to the effect that a prayer for seeking declaration will be necessary only if there is denial of title of plaintiff by the defendant or challenge to plaintiff's tittle raised a cloud to the title of the plaintiff to the property. So far as the case of the plaintiff is concerned the relief clause of the plaintiff only depicts prayer for mandatory/prohibitory injunction against the defendants and plaintiff himself pleaded that defendant no. 1 executed transfer documents in respect of the said flat, however, defendant no. 1 failed to appear before defendant no. 2 and defendant no. 2 failed to transfer the membership of the said flat in the name of plaintiff, so plaintiff himself pleaded that the ownership of said flat is yet to be transferred in his name, therefore, the sale transaction of the said flat admittedly was not completed in favour of plaintiff, therefore, it can be concluded from the averments made in the plaint that plaintiff has neither pleaded/claimed title over the said Page No. 21 of 25 RCA No.:15/2018 Arvinder Singh v. Satwant Kaur & Ors. DOD : 13.03.2020 flat nor the possession thereof. As such when the title of the plaintiff is not established in the said flat, the relief of mandatory /prohibitory injunction as sought by the plaintiff is not maintainable without seeking declaration of title in the said flat as per the ratio of law laid down by Superior Courts in the foregoing paras detailed and I found no ostensible reason to disagree with the findings so recorded by Ld. Trial Court.
15. Apart from the reasoning given by Ld. Trial Court, it may also be relevant to observe here that the name of defendant no. 1 was substituted as nominee of the deceased way back in April 2004 and thereafter, the said flat was allotted to defendant no. 1 in the draw of lots held by defendant no. 3 on 13.03.2012 in the presence of plaintiff, and in between, on 28.12.2007, the defendant no. 1 is alleged to have executed all the transfer documents for transfer of membership of the said flat in favour of plaintiff, however, the plaintiff never objected to either the substitution of defendant no. 1 as nominee of the deceased or thereafter the allotment of the said flat in the name of defendant no.1. Furthermore, as per the pleadings of the plaintiff, the transfer documents/ regarding membership allotted in favour of defendant no. 1 of the said flat in the record maintained by defendant no. 2 were executed in favour of plaintiff on 28.12.2007 however, the plaintiff never file any suit for specific performance of such transfer documents executed by defendant no. 1 in his favour and now the present suit has been filed without seeking any declaration so as to avoid the rigors of law of limitation. Otherwise also, the limitation Page No. 22 of 25 RCA No.:15/2018 Arvinder Singh v. Satwant Kaur & Ors. DOD : 13.03.2020 in the present suit cannot be held to be mixed question of law and facts in as much as the Hon'ble Supreme Court in Raghwendra (supra) has held as under :
"7.1 At this stage, it is required to be noted that, as such, the plaintiff has never prayed for any declaration to set aside the gift deed. We are of the opinion that such a prayer is not asked cleverly. If such a prayer would have been asked, in that case, the suit can be said to be clearly barred by limitation considering Article 59 of the Limitation Act and, therefore, only a declaration is sought to get out of the provisions of the Limitation Act, more particularly, Article 59 of the Limitation Act. The aforesaid aspect has also not been considered by the High Court as well as the learned trial Court.
8. Now, so far as the application on behalf of the original plaintiff and even the observations made by the learned trial Court as well as the High Court that the question with respect to the limitation is a mixed question of law and facts, which can be decided only after the parties lead the evidence is concerned, as observed and held by this Court in the cases of Sham Lal alias Kuldip (supra); N.V. Srinivas Murthy (supra) as well as in the case of Ram Prakash Gupta (supra), considering the averments in the plaint if it is found that the suit is clearly barred by law of limitation, the same can be rejected in exercise of powers under Order 7 Rule 11(d) of the CPC."
From a bare perusal of the observation made by Hon'ble Apex Court, it can be safely concluded that plaintiff has cleverly drafted the plaint so much so that if such a prayer for declaration had been made, the suit would have been cleared barred by limitation in as much as the suit has been filed in July 2013.
16. So far as ratio of law laid down Indrani Wahi (ssupra) is concerned, suffice is to say the ratio of the said judgment is to the effect that a nominee is answerable to the legal heir of the Page No. 23 of 25 RCA No.:15/2018 Arvinder Singh v. Satwant Kaur & Ors. DOD : 13.03.2020 deceased and even if a valid nomination is made by the deceased, the nominee did not acquire title to the property and in para no. 6 it has been observed as under :
"6. We are, however, not inclined to accept such contention of Dr. Ghosh. In our view, within the limited scope of inquiry to be made for determining the question of valid nomination under Section 69, title to the property cannot be determined. In terms of determination of valid nomination the consequential direction for delivery of possession can be given in favour of the person having valid nomination under the provisions of Section 70 of the Cooperative Societies Act. The dispute as to the question of title is not to be decided within the limited scope and ambit of Sections 69 and 70 of the cooperative Societies Act. We, therefore, dispose of this appeal by directing that in view of the finding by the Tribunal that the respondent had obtained a valid nomination from the deceased Ranendra Kumar Acharya, the respondent is entitled to get the possession of the said flat in accordance with the provisions of Section 70 of the Cooperative Societies Act. But the dispute as to the title of the said flat should not be held to have been decided either by the Cooperative Tribunal or by the High Court by the impugned judgment. Such question is kept open to be decided by an appropriate forum if such challenge is made before the appropriate forum. This appeal is accordingly disposed of without any order as to costs."
17. Therefore, as per the ratio of Indrani Wahi (supra) defendant no.1 was nominee of the deceased however, neither the plaintiff nor any other legal heir had, at any point of time, objected to the such nomination of defendant no. 1 of deceased nor any of the legal heirs has ever challenged the said nomination nor the allotment of said flat in the name of defendant no. 1 by initiation legal proceedings as per law, therefore, the ratio of this judgment is not going to help the plaintiff in as much as plaintiff has never challenged either the nomination or the allotment of the said flat in the name of defendant no.1. In addition to it, plaintiff never Page No. 24 of 25 RCA No.:15/2018 Arvinder Singh v. Satwant Kaur & Ors. DOD : 13.03.2020 sued defendant no. 1 for asking his share in the said flat. In addition to it plaintiff never sought specific performance of the transfer documents as stated above.
18. From above said discussion, it can be held that plaintiff, without having a title to the said flat, has rightly been held not entitled to the mandatory/prohibitory inunction and suit simplicitor without seeking declaration of the title in the said flat is not maintainable as per the ratio of Anathula Sudhakar (supra). Apart from that, as stated above, the suit is clearly barred by limitation.
19. From the above said discussion, I am of the opinion that there is no substance in appeal and I found no ostensible reasons to disagree with the findings so recorded by Ld. Trial Court. As such this appeal is devoid of merits and deserves to be dismissed. The appeal is hereby dismissed and disposed off accordingly.
Decree Sheet be drawn accordingly.
Trial Court Record be sent back along with copy of this order.
Appeal file be consigned to record room.
DR Digitally signed
by DR VIJAY
Announced in the open court on
VIJAY KUMAR DAHIYA
13th Day of March 2020. KUMAR Date:
2020.05.04
DAHIYA 16:45:39 +0530
(V.K. DAHIYA)
ADDL.DISTRICT JUDGE01 (SOUTH WEST)
DWARKA DISTRICT COURTS: NEW DELHI.
Page No. 25 of 25