Delhi District Court
Rajender Singh Jadon vs Suman Singh on 17 January, 2012
In the Court of Civil Judge04 (South), Saket
Court Complex, New Delhi
Presided By : Ms. Vijeta Singh
Suit no. 31/2010
Unique Case I.D. No. 02406C0314772010
In the matter of :
Rajender Singh Jadon
S/o Late Sh. Nawab Singh
R/o C3/3160, Vasant Kunj
New Delhi110070 ....................Plaintiff
Versus
1. Suman Singh
W/o Sh. Om Prakash Singh
R/o Piagu Road, Near Water Tank
Sirsaganj, Distt. Firozabad,
Uttar Pradesh
2. Usha Singh Jadon
Estranged Wife of Rajender Singh Jadon
R/o C3/3162, Vasant Kunj,
New Delhi110070
3. Deepak Jadon
S/o Sh. Rajender Singh Jadon
R/o C3/3162, Vasant Kunj,
New Delhi110070
4. Vivek Jadon
S/o Sh. Rajender Singh Jadon
Suit No. 31/2010 1/6 pages
Rajender Singh Jadon v. Suman Singh & Ors.
R/o C3/3162, Vasant Kunj,
New Delhi110070
5. Delhi Development Authority
Vikas Sadan, I.N.A., New Delhi
Through Standing Counsel
6. State of Govt. of NCT of Delhi
Office of Registrar/SubRegistrarVII,
I.N.A., Vikas Sadan, New Delhi
Through Standing Counsel ..................Defendants
Date of Institution : 06.09.2010
Date of Reserving of Order : 04.01.2012
Date of Pronouncement of Order : 17.01.2012
O R D E R
1. Vide this order this Court shall dispose of application under Order VII Rule 11 CPC filed by the defendants no. 1 and 2 vide which they have prayed that the plaint be rejected as it is barred by Section 4 of the Benami Transaction (Prohibition Act) 1988 (hereinafter referred to as 'the Act') and is also barred by limitation.
2. It is stated that the plaint is liable to be rejected as the plaint states that the property was purchased on 06.11.1997 benami in the name of defendant no.
1. Therefore, the same is hit by Section 4 of the Act due to the plaintiff's Suit No. 31/2010 2/6 pages Rajender Singh Jadon v. Suman Singh & Ors.
own averments. Further, it is stated that the relief of cancellation of Conveyance Deed could only have been filed within 3 years of its execution and the suit is therefore, hopelessly barred by limitation as the Conveyance Deed was registered on 25.06.2003 and plaintiff all throughout had knowledge of the same.
3. The application has been contested by way of a reply wherein it is stated that the suit cannot be rejected under section 4 of the Act read with Order VII Rule 11 CPC because the surrounding circumstances and the intention of the parties at the time the transaction occured has to be taken into consideration. Further, it is stated that presumption under the Act are rebuttal in nature during the course of the trial and therefore, the plaint .
should not be rejected in limine It is also stated that the cause of action for filing of the present suit arose on 25.08.2009 when the defendants sought to assert their rights and when the plaintiff gathered knowledge of the defendants trying to alienate the suit property. It is therefore, stated that the suit is well within limitation.
4. This Court has heard the Ld. Counsel for the parties.
5. During the course of arguments Ld. Counsel for the plaintiff sought to place reliance upon (1) Laxman Sakharam Salvi & Ors. v. Balkrishna Balvant Ghatage AIR 1995 Bombay 190 (2) Krishn Kumar v. Harnam Dass & Ors. ILR 1990 Delhi 343 (3) Jay Dayal Poddar (Deceased) through LRs & Anr. v. Mst. Bibi Hazra & Ors. AIR 1974 Supreme Court 171 (4) Pawan Suit No. 31/2010 3/6 pages Rajender Singh Jadon v. Suman Singh & Ors.
Kumar Gupta v. Rochiram Nagdeo AIR 1999 Supreme Court 1823 (5) Ouseph Chacko & Anr. v. Raman Nair Raghvan Nair AIR 1989 Kerala 147 (6) Mohd. Nazir & Anr. v. Mst. Zulaikha AIR 1928 Allahabad 267 (7) Irshad Ali v. Shahaba Begum 67 (1997) DLT 576 (8) Brig. (Retd.) Shyam Prasad v. Dayavati & Ors. MANU(D)/0161/2010 (9) C. Natarajan v. Ashim Bai & Anr. (2007) 14 SCC 183 (10) Popat & Kotecha Property v. State Bank of India Staff Association (2005) 7 SCC 510 (11) Sarabjeet Singh Anand & Ors. v. Shri Manjeet Singh Anand & Ors. 2008 VII AD (Delhi) 345 (12) Gauri Amma Vaidehi Amma v. Parmeswaram Pillai Madhavan Pillai & Anr. AIR 1957 TRAVCO 312 (13) Prem Singh & Ors. v. Birbal & Ors. AIR 2006 Supreme Court 3608 and (14) Ram Sarup v. Ghanshyam Dass 2010 (5) RCR (CIVIL) 275. Counsel for the defendants sought to place reliance upon (1) Abdul Rahim and others v. Sk. Abdul Zabar and others (2009) 6 SCC 160 (2) Kamlesh Babu and others v. Lajpat Rai and others 2008 (12) SCC 577 (3) Md. Noorul Hoda v. Bibi Raifunnisa and others (1996) 7 SCC 767 (4) Ramti Devi (Smt.) v. Union of India (5) R. Rajagopal Reddy (Dead) By LRs. & Ors. v. Padmini Chandrasekharan (Dead) By Lrs. (1995) 2 SCC 630 (6) Sarabjeet Singh Anand & Ors. v. Shri Manjeet Singh Anand & Ors. 2008 VII AD (Delhi) 345 (7) Shri Meenakshi Mills Ltd. V. CIP AIR 1957 Supreme Court 49.
6. Perusal of plaint shows that the plaintiff has averred that he has been in uninterrupted and continuous possession of the suit property since the date Suit No. 31/2010 4/6 pages Rajender Singh Jadon v. Suman Singh & Ors.
of transaction. He has also sought to rely upon "Krishan Kumar Vs. Harnam Dass and Ors." ILR 1990 Delhi 343. In the said judgment in paragraph no. 23, it has been held as under:
"... In a benami transaction it must be established that the property is held or possessed by the benamidar and that consideration was paid by another person. If possession is not transferred to the Benamidar and actually the consideration is paid by another person and the possession of the property is also taken by such other person, the transfer deed by which the property is shown to have been sold to the benamidar would be merely a sham document. It will go to show that the real intention of the parties was not to confer any right, title or interest in the benamidar. The Act will apply only when both the conditions i.e. the transfer of possession to the Benamidar as well as the payment of consideration by a person other than the benamidar are proved and it will not extend to a case where actually the possession of the property has not been transferred to the benamidar."
7. Ld. Counsel for the defendants urged that the judgment would not apply to the present suit in view of the judgment of the Hon'ble Supreme Court titled as "R. Rajagopal Reddy (Dead) By LRs and Others Vs. Padmini Chandrasekharan (Dead) By LRs" (1995) 2 SCC 630 which has overruled Mithilesh Kumari v. Prem Behari Khare (1989) 2 SCC 95 and the same was relied upon by our own High Court in Krishan Kumar (Supra).
8. In the considered view of this Court said judgment has only overruled Suit No. 31/2010 5/6 pages Rajender Singh Jadon v. Suman Singh & Ors.
"Mithilesh Kumari (Supra)" as regards the retrospective application of the Act. Further, no judgment in rebuttal of Krishan Kumar (Supra) has been brought to the notice of this Court. This Court is bound by Krishan Kumar (Supra) and since, the possession of the property is disputed, the suit cannot be rejected in limine.
9. Rejection of the plaint has also been sought on the ground that a suit for cancellation of an instrument can only be brought within a period of three years from the date of knowledge (as per Article 59, Schedule, The Court Fees Act, 1963) and as per the plaintiff's averments, he has had knowledge of the document all along.
10. In the considered view of this Court, whether or not, the plaintiff had the knowledge of the document since inception and thus, the suit is barred by limitation is it self a mixed question of law and fact as plaintiff has claimed knowledge of conveyance deed was gathered at the time of filing of the suit. Further, plea of bar of limitation has been raised only qua relief of cancellation of conveyance deed. It is a well settled proposition of law that a plaint cannot be rejected in part. The suit has also been filed claiming a relief of declaration.
11. Therefore, the application under Order VII Rule 11 is hereby dismissed as for the reasons aforesaid, plaint cannot be rejected in limine..
Announced in the open Court (Vijeta Singh) On 17.01.2012 Civil Judge04/South District/New Delhi Suit No. 31/2010 6/6 pages Rajender Singh Jadon v. Suman Singh & Ors.