Delhi District Court
(NorthWest) Rohini Courts Delhi vs Sh. Daljeet Sijngh Anand on 23 January, 2015
1
IN THE COURT OF SH. SANJEEV AGGARWAL LD ADJ03
(NorthWest) ROHINI COURTS DELHI
RCA No.11/14
23.01.2015
Sh. Kulwant Singh Anand
S/o Late Hara Singh Anand
D13/A, Model Town,
New Delhi110009 ......APPELLANT
Versus
1. Sh. Daljeet Sijngh Anand
S/o Sh. Kulwant Singh Anand
R/o B1/37, First Floor,
Ashok ViharII, Delhi110052
2. Sh. Harjinder Singh Anand
S/o Sh. Kulwant Singh Anand,
R/o B1/37, First Floor,
Ashok ViharII, Delhi110052 ........RESPONDENTS
Date of Institution of the Appeal : 02.07.2013
Date on which order was reserved : 01.10.2014
Date of decision : 23.01.2015
O R D E R
1. Vide this order I shall dispose off the present appeal filed by the appellant against the judgment and decree dated 21.01.13 RCA NO. 11/14 Kulwant Singh Anand Vs. Daljeet Singh Anand 2 passed by the court of Additional Senior Civil Judge/Rohini dismissing the suit of the plaintiff (parties hereinafter referred to their respective status before trial court). Alongwith the said appeal there is an application for condonation of delay in filing the present appeal.
2. Brief facts which can be culled out from the impugned judgment of Ld. Trial Court are as under:
The present suit has been filed by the plaintiff Sh. Kulwant Singh Anand against his sons Sh. Daljeet Singh Anand and Sh. Harjinder Singh Anand seeking decree of declaration that the conveyance deed dated 15.5.1996 executed in favour of the defendants in respect of property bearing no. 1/37, Ashok Vihar, Phase II, Delhi - 110 052, hereinafter referred as suit property, and any other document executed in support of the said transaction as null and void and a decree of permanent junction thereby restraining RCA NO. 11/14 Kulwant Singh Anand Vs. Daljeet Singh Anand 3 the defendants, their heirs, successors, nominees, representatives, attornies, administrator and assignees etc. from interfering with the possession of the plaintiff and restraining the defendants from selling, transferring, alienating, mortgaging or creating third party interest in respect of the suit property. It is submitted by the plaintiff that he is a self made man and has risen to a status in his life by sheer hard work and that the properties including the suit property are self acquired and that he did not have any formal education and is an uneducated and illiterate person though he can write and sign his name in English. The plaintff claimed that he is the owner of the suit property which is occupied and used by the defendants on account of permission granted by him out of love and affection RCA NO. 11/14 Kulwant Singh Anand Vs. Daljeet Singh Anand 4 and he is in its constructive possession.
It is further claimed that the plaintiff bought the plot of land from one Sh.
Harcharan Singh out of his funds by way of power of attorney and that the funds were routed through the defendants since the transaction was in the form of a collaboration agreement entered into between the defendants on one hand and Sh. Harcharan Singh on other hand and that the defendants had no funds of their own in their account and the moneys were paid by the plaintiff. It is furthe submitted that the plaintiff constructed a house on the plot and paying the property tax and that the electricity and water connections installed and used by the defendants are in the name of plaintiff. It is submitted that in the year 1996 the plaintiff decided to get the suit property converted from RCA NO. 11/14 Kulwant Singh Anand Vs. Daljeet Singh Anand 5 leasehold to freehold as suggested by the defendants and that for the said purpose the defendant no 1 was deputed to whom all the documents were handed over with trust and that he informed that for this purpose the presence of all the parties will be required and that on the pretext of the work of conversion he got certain documents signed from the plaintiff and the defendant no 2 and that the plaintiff signed the said documents believing and trusting his sons that the same were genuinely required for conversion and that the plaintiff with his son defendant no 2 visited the office of DDA where they met defendant no 1 and the plaintiff trusting the defendants and believing that all the documents being got signed were required for the purposes of conversion signed at all the places as suggested by RCA NO. 11/14 Kulwant Singh Anand Vs. Daljeet Singh Anand 6 them and that immediately after signing of the documents he with defendant no2 left for home as asked by defendant no 1. It is alleged that some time in March 2006 defendant no 1 filed a suit for partition against defendant no 2 alleging the they both are joint owners of the suit property for which the summons were served upon defendant no 2 on 28.04.2006 who some time in May 2006 met the plaintiff and apprised about the suit and that the plaintiff was shocked and surprised to learn the content of plaint in which the defendant no 1 had claimed himself the joint owner on the basis on conveyance deed dated 15.05.1996. It is alleged that the said conveyance deed is a fraud played by defendants upon their old and uneducated father whereby defendants got the property transferred in their name RCA NO. 11/14 Kulwant Singh Anand Vs. Daljeet Singh Anand 7 though the documents had been got signed on the pretext of converting it from leasehold to freehold and that no consideration was ever paid to the plaintiff as such the said document dated 15.05.1996 is liable to be declared null and void. It is claimed that the plaintiff with draw his application filed in that suit seeking impleadment with liberty to file a separate suit, hence the suit.
2. Defendant no. 1 filed written statement and raised the objections that the suit of the plaintiff is barred by the provisions of Section 34 of Specific Relief Act, 1963 as amended up to date and that the same is not within the period of limitation. It is further submitted that the relief claimed by the plaintiff is barred under Section 4 of Benami Transaction RCA NO. 11/14 Kulwant Singh Anand Vs. Daljeet Singh Anand 8 (Prohibition) Act, 1988.
In reply on merits it is submitted that the conveyance deed dated 15.5.1996 prima facie shows that defendant no. 1 is the owner of one half of the suit property and the other half belongs to defendant no. 2. It is denied that the plaintiff is owner of the suit property or he has any right, title or interest in the suit property. It is further denied that the plaintiff is in constructive possession of suit property and the defendants are in possession, occupation and enjoyment thereof with the permission of the plaintiff. It is further submitted that the defendants are owners in possession of the suit property in their own independent right in equal shares and suit for partition of the suit property between both defendants is pending for RCA NO. 11/14 Kulwant Singh Anand Vs. Daljeet Singh Anand 9 disposal in Hon'ble Delhi High Court. It is further submitted that money for the purchase of plot of suit land from Sh.
Harcharan Singh the original allottee was not paid out of the funds of the plaintiff nor any funds were shifted through defendants to purchase the land. It is submitted that the original allottee entered into agreement with the defendants under which they were to construct the super structure on the land and the defendants had deposited as security a sum of Rs.48,000/ with him for due performance of agreement for construction and that the construction was carried out by the defendants from their personal funds and that it was agreed between them that in case of breach of agreement by the allottee the transaction shall be deemed to be sale of RCA NO. 11/14 Kulwant Singh Anand Vs. Daljeet Singh Anand 10 plot for consideration of Rs.48,000/ already paid as security money and that the allottee was not able to pay the construction charges incurred by the defendants so he confirmed by writing a letter dated 15.3.1983 that the transaction be treated as sale of plot to the defendants who were in actual physical possession thereof. It is submitted that the entire consideration for the purchase of plot of land and construction had been incurred by the defendants in equal shares. It is submitted that the plaintiff never had any right, title or interest in the suit property and he was authorized only to act as attorney of original owner in the agreement dated 4.9.1978 for construction of structure on plot of land. It is further submitted that the plaintiff in compliance of the terms of the agreement acted on RCA NO. 11/14 Kulwant Singh Anand Vs. Daljeet Singh Anand 11 behalf of the original owner for execution of the documents of the suit property. It is claimed that the mutation of the suit property exists in the name of defendants in municipal records and that the electricity and water connection existing in the suit property are also in the name of the defendants. It is submitted that defendant no. 2 is residing at the ground floor of the suit property and is not having cordial relations with defendant no. 1 had obtained two domestic electricity connections in the name of the plaintiff for distribution of load and tariff. It is submitted that the plaintiff is a worldly wise person and has been engaged in business from the age of discreation and is managing partner of the partnership business established as Anand Super Service Station and he signs almost all RCA NO. 11/14 Kulwant Singh Anand Vs. Daljeet Singh Anand 12 correspondence in English and knows English, Urdu and Gurmukhi. It is claimed by the defendant no. 1 that in the office of DDA the plaintiff after understanding all requirements and effect of documents had signed them in the presence of authorized officer of DDA. It is denied by the defendant that he obtained signatures of the plaintiff on any document or papers in connection with the conversion of lease hold rights to free hold rights without consent or knowledge of the plaintiff. It is stated that four sets of conveyance deed were sent by post by DDA for signatures of plaintiff and defendants which had remained with plaintiff for a consideration period during which stamp duty was paid in the Office of Collector of Stamps and the plaintiff knew about his role in signing the conveyance deed. It is denied by the RCA NO. 11/14 Kulwant Singh Anand Vs. Daljeet Singh Anand 13 defendant no. 1 that he played any fraud on the plaintiff to acquire the suit property and prayed for dismissal of the suit.
3. Defendant no. 2 filed written statement in which he supported the case of the plaintiff.
4. In the replication filed to the written statement of defendant no. 1 the plaintiff reiterated and reaffirmed the contents and averments of the plaint and denied the objections of defendant no. 1.
5. On the basis of the pleadings of the parties and submissions made, the following issues were framed :
1. Whether the plaintiff is entitled for the relief of injunction as prayed for? OPP
2. Whether the plaintiff is entitled for the relief of declaration as prayed for? OPP RCA NO. 11/14 Kulwant Singh Anand Vs. Daljeet Singh Anand 14
3. Whether the suit is not properly valued for the purposes of court fees and jurisdiction? Onus on the parties
4. Whether the suit is barred by Section 34 of Specific Relief Act? OPD1
5. Whether the suit is barred by limitation? OPD1
6. Whether the suit is barred by Section 4 of the Benami Transactions (Prohibition) Act? OPD1
7. Relief.
3. Vide detailed judgment & decree dated 21.01.13 suit of the plaintiff was dismissed. It is against the said judgment plaintiff has approached this court on the following main grounds that Ld.Trial court has failed to appreciate the case of the appellant in proper perspective. The Ld. Trial Court has failed to appreciate that the signatures of the plaintiff on the document for conversion of the property from leasehold to freehold were obtained by defendant no. 1 by playing fraud, which fact Ld. Trial Court has failed to appreciate. The Ld. Trial court has RCA NO. 11/14 Kulwant Singh Anand Vs. Daljeet Singh Anand 15 also failed to appreciate that the appellant has categorically stated by standing in the witness box on oath that he was made to believe that it was only an exercise for conversion of property from leasehold to freehold which testimony has gone unchallenged. Ld. Trial Court has also failed to appreciate that the plaintiff had filed the present suit for declaration and permanent injunction for declaring the conveyance deed dated 15.05.1996 executed in favour of defendants as null and void due to fraud played by the defendants and plaintiff was made to sign the sale deed under the garb of getting the suit property converted from leasehold to freehold. In this regard Ld. Trial court has failed to appreciate Section 17 of the Limitation Act as per which the limitation of such fraudulent act starts from the date of knowledge or discovery of fraud and not prior to that. Ld. Trial court has also failed to appreciate that the conveyance deed came to the knowledge of the plaintiff in the month of May 2009, when defendant no. 2 received summons from the court for the suit for partition filed by defendant no. 1, thus the limitation starts from the month of May 2009. In this regard Ld. Trial Court has also failed to appreciate the law laid down by the Hon'ble Apex Court. The RCA NO. 11/14 Kulwant Singh Anand Vs. Daljeet Singh Anand 16 Ld. Trial court has also failed to appreciate that defendant no. 1 had specifically pleaded that the transaction was barred by the provisions of Benami Transactions Prohibition Act, however at the time of final arguments he did not press the said plea only for the reason that pressing the plea would have amounted to admission of the fact that the payment was made by the plaintiff. Hence the same is liable to be set aside.
4. Alongwith the appeal there is an application for condonation of delay in filing the present appeal. It is stated that delay of 55 days in presenting the appeal took place due to the fact that the appellant being the old person aged around 87 years was disturbed by the dismissal order and its consequences and the plaintiff after considering all options and after consulting some of his other elderly friends and well wishers decided to go rd ahead with the appeal and accordingly in the 3 week of February 2013 instructed his counsel to proceed with the process of initiating and preferring an appeal. Therefore it is stated that the said delay be condoned.
5. Reply has been filed to the said application stating that no ground for condonation of delay is made out and such delay is not bonafide and has not been properly explained and infact RCA NO. 11/14 Kulwant Singh Anand Vs. Daljeet Singh Anand 17 there is a delay of 127 days and not 55 days as stated by the plaintiff.
6. I have heard Ld. Counsel for the plaintiff Sh. Tarun Diwan, counsel for defendant no. 1 Sh. Surender Jain and counsel for defendant no. 2 Sh. Piyush Kalra and perused the record.
7. First of all taking the application of the appellant for condonation of delay, it is settled law that as far as possible cases should be decided on merits rather than on technicalities. Considering the mental state of the plaintiff after dismissal of suit by Ld. Trial court it can be well imagined that he must have consulted all his well wishers and friends before filing of the present appeal against his two sons, he surely must have measured pros and cons before filing the present appeal, lest it would have further spoiled his relations with his sons in the twilight of his life, therefore delay in filing the appeal has been sufficiently explained, the said delay is condoned in the interest of justice.
8. Now adverting to the appeal in question, the plaintiff had challenged the conveyance deed dated 15.05.96 in favour of defendant with respect to the suit property bearing no. I/37 Ashok Vihar Phase II, Delhi executed before DDA and its RCA NO. 11/14 Kulwant Singh Anand Vs. Daljeet Singh Anand 18 officials. The plaintiff has no doubt in his affidavit has stated on oath the averments mentioned in the plaint. However, there was very heavy onus upon the plaintiff to prove that the said conveyance deed dated 15.05.1996 was got executed from him by defendant no. 1 by practicing fraud and coercion.
9. From the perusal of the said conveyance deed dated 15.05.1996 it is apparent that the said conveyance deed was executed in the office of DDA in favour of defendants no. 1 & 2 by the plaintiff acting as attorney of one Harnam Singh. The said sale deed was executed on behalf of DDA by its Assistant Director Sh Rameshwar Dayal and in presence of one Dharamveer witness besides defendant no. 1 & 2. During trial no attempt was made to examine those witnesses, namely officer of the DDA who had executed the conveyance deed on behalf of DDA and the said witness Dharamveer who has signed the said conveyance deed as attesting witness. Their testimonies would have been more than relevant to prove the assertion of the plaintiff that the said conveyance deed was got executed from him by defendant no. 1 by practicing fraud. In any case, witness from the DDA would have been most important witness, since he had no axe to grind against any of RCA NO. 11/14 Kulwant Singh Anand Vs. Daljeet Singh Anand 19 the parties, he would have deposed the truth regarding the transaction in question. In any case, it is hard to imagine that the person from the DDA who is neither interested in transaction or any of the parties would have allowed the plaintiff to sign the said documents without explaining the consequences of the same. In any case, what to talk about the said attesting witnesses and the witness of the DDA, defendant no.2 who has supported the case of the plaintiff in his written statement has himself shyed away from appearing in the witness box. He should have come in the witness box and should have told the court on oath that on that particular day i.e on 15.05.96 he had taken his father to the office of DDA where defendant no. 1 was already present. Thereafter at the instance of defendant no. 1 he and his father signed the documents as pointed out by defendant no. 1 and immediately after signing the documents the defendant no. 1 told the defendant no. 2 that he should go home with the plaintiff and rest of the transaction would be effected by defendant no. 1. If that was so why defendant no. 1 did not come into the witness box for deposing regarding the truth with regard to transaction in question and for removal of suspicious circumstances as RCA NO. 11/14 Kulwant Singh Anand Vs. Daljeet Singh Anand 20 pleaded in the plaint.
10.If defendant no. 1 was practicing fraud upon both the plaintiff as well as defendant no. 2, then it is hard to imagine that defendant no. 1 would have got transferred the suit property in equal share in favour of himself as well as defendant no. 2. If he had really turned dishonest he could have got transferred the entire property in his favour by practicing fraud upon the plaintiff and defendant no. 2. There was no reason that he transferred the suit property in equal measure in his favour as well as in favour of defendant no. 2. Further thereafter documents seems to have been registered on 21.05.1996 where presence of both defendants no. 1 & 2 would have been required alongwith the plaintiff. It is hard to imagine that the Sub Registrar who is the public authority did not apprise the plaintiff and defendants no. 1 & 2 regarding the document(s) which was being registered before him and plaintiff who is stated to be a successful businessman, may be in his old age would have definitely inquired from him as to for what purpose he was there before him, alongwith defendant no. 2 who is supporting the case of the plaintiff. The plaintiff on any sort of inquiry from either the Sub Registrar or the defendant no. 2 RCA NO. 11/14 Kulwant Singh Anand Vs. Daljeet Singh Anand 21 would have known that the property had been fraudulently got transferred by defendant no. 1 by practicing fraud.
11.It appears that defendant no. 2 is taking an an ambivalent stand in the present suit, on the one hand he is supporting his father and on the other hand he wants to get his share in the suit property. In any case, it is hard to imagine that for such a long period of time since 1996 till 2009, the defendant no. 2 kept mum and never informed the plaintiff that he alongwith defendant no. 1 had become the 50% owner of the suit property. Further at the time of executing the relevant conveyance deed the age of the plaintiff must be in the late 60s, it cannot be said that he was very old and incapacitated to know the consequences of executing the said documents. Therefore finding of the Ld. Trial Court with regard to issue no. 1 & 2 which have been returned in favour of the plaintiff cannot be faulted. The said issues have been rightly decided in favour of defendants and against the plaintiff.
12.Regarding issue no. 5, whether suit of the plaintiff was barred by limitation it has been contended by counsel for plaintiff that limitation in the present case would start as per Section 17 of the Limitation Act from the date of knowledge of fraud which RCA NO. 11/14 Kulwant Singh Anand Vs. Daljeet Singh Anand 22 came into knowledge of the plaintiff when defendant no. 2 received summons with regard to the filing of partition suit by defendant no. 1 before Hon'ble High Court. In this regard counsel for plaintiff has relied upon the judgment (2000) 7 SCC 702 titled as Dilboo(Smt)(Dead) by Lrs and Ors., Vs. Dhanrani(Smt)(Dead) & Ors.
13.In the said judgment it has been held that where transfer is by registered document the date of registration becomes the date of deemed knowledge, in cases where a fact could be discovered by due diligence, the plaintiff would be deemed to have the necessary knowledge i.e deemed knowledge for the purpose of limitation. The date of knowledge in case of registered documents will be the date of registration which would be the date of deemed knowledge.
14.Counsel for defendant no. 1 has further relied upon the judgment (1995) 1 SCC 198 in the case tilted as Ramti Devi(Smt) Vs. Union of India. In the said judgment it has also been held that until the document is avoided or cancelled by proper declaration, the duly registered document remains valid and binds the parties. So the suit necessarily has to be laid RCA NO. 11/14 Kulwant Singh Anand Vs. Daljeet Singh Anand 23 within 3 years from the date when the cause of action had occurred, i.e the date within 3 years from the date when the cause of action had occurred i.e the date on which the sale deed was executed and registered.
15.In view of the law laid down in the above judgment which is squarely applicable to the facts and circumstances of the present case plaintiff is deemed to have knowledge with regard to the execution of conveyance deed dated 15.05.96 which fact he could have discovered by due diligence. Therefore he is deemed to have knowledge regarding the execution of said documents from the date of registration of document which was carried out on 21.03.96. In any case, it is not the case of the plaintiff that defendant no. 2 had also defrauded him. Infact defendant no. 2 has fully supported the case of the plaintiff. It is hard to imagine that defendant no. 2 being close to the plaintiff would not have revealed to the plaintiff that he had been short changed by the defendant no. 1 in executing the conveyance deed dated 15.05.96, since the limitation of filing the suit for declaration would be 3 years and the present suit has been filed much later on in the year 2009, therefore it has been rightly held by Trial Court that the suit of RCA NO. 11/14 Kulwant Singh Anand Vs. Daljeet Singh Anand 24 the plaintiff is barred by limitation . Section 17 of the Limitation Act would not be applicable to the peculiar facts and circumstances of the present case. Therefore issue no. 5 has also been rightly held by the Ld. Trial Court holding the same in favour of defendant no. 1 and against the plaintiff.
16.Regarding issue no. 4, it is admitted case of the parties that defendant no. 1 has filed suit for partition before the Hon'ble High Court bearing CS(OS) No. 482/06 in which judgment was returned on 27.03.14 by the Hon'ble High Court. However, counsel for plaintiff has filed one copy of the order dated 14.10.14 and 10.10.14 passed by the Hon'ble High Court in RFA(OS) No. 141/14 whereby the effect and operation of order dated 27.03.14 has been stayed. Therefore in my respectful view the said judgment cannot be relied upon by this court. Therefore the findings given in the said judgment cannot be relied upon by this court at this stage. However, the evidence lead in the said case on behalf of the plaintiff and the defendants would be relevant. The plaintiff had filed the present suit claiming that he was in constructive possession of the suit property.
17.In the cross examination the plaintiff admitted that he had RCA NO. 11/14 Kulwant Singh Anand Vs. Daljeet Singh Anand 25 deposed in the suit for partition pending before Hon'ble High Court, the certified copy of his deposition recorded there is Ex PW1/D7 and in his cross examination as DW2 in the said suit on 18.01.12 he had deposed in his cross examination that he never resided in the suit property which shows that he was not in possession of the suit property. The plaintiff by way of suit filed before Ld. Trial Court sought relief of declaration declaring himself as exclusive owner of the suit property alongwith the relief of injunction when he is not in possession of the suit property. Therefore he was further required to seek possession of the same as a consequential relief. In this regard, counsel for defendant no. 1 has relied upon judgment (2012) Union of India Vs. Ibrahim Uddin & Anr., wherein it has been held that:
"suit seeking declaration of title of ownership of property without seeking possession, when the plaintiff is not in possession is not maintainable."
18. It has been further held that:
Section 34 provides that court have discretion as to declaration of status RCA NO. 11/14 Kulwant Singh Anand Vs. Daljeet Singh Anand 26 or right. However, it carves out an exception that a court shall not make any such declaration of status or right where the complainant, being able to seek further relief than a mere declaration of title, omits to do so. Thus it is not permissible to claim the relief of declaration without seeking consequential relief. In the instant case, the suit for declaration of title of ownership had been filed, though respondent no. 1 plaintiff was admittedly not in possession of the suit property and he did not ask for restoration of possession or any other consequential relief. Thus, the suit was barred by the provisions of Section 34 of the Specific Relief Act and, therefore, ought to have been dismissed solely on this ground. The High Court though framed a substantial question on this point but for unknown reasons did not consider it proper to decide the same.
19.Therefore by virtue of Section 34 of the Specific Relief Act in order to avoid multiplicity of proceedings plaintiff was required to seek possession of the suit property which he failed to do RCA NO. 11/14 Kulwant Singh Anand Vs. Daljeet Singh Anand 27 so, therefore suit of the plaintiff is barred by Section 34 of the Specific Relief Act. This issue has also been rightly decided in favour of defendant no. 1 and against the plaintiff. Other issues decided by the trial court i.e issue no. 3 & 6 have been decided in favour of the plaintiff. The plaintiff in any case has not challenged those issues by preferring any counter appeal. Even otherwise I have perused the evidence and findings returned on the said issue. No infirmity can be found in the same. It is also settled law that if two views are possible then the view taken by trial court is to be upheld unless the same is totally perverse or contrary to the law. Therefore, the order under challenge suffers from no infirmity or illegality, which has been rightly passed by giving cogent reasons in support of the same. Consequently, I do not find any merit in the present appeal. Same stands dismissed.
20.TCR alongwith the copy of order be sent back to the Ld. Trial Court.
21.Appeal file be consigned to Record Room. ANNOUNCED IN THE OPEN (Sanjeev Aggarwal) COURT ON 23.01.2015 ADJ(N/w) Rohini Courts Delhi/23.01.2015 RCA NO. 11/14 Kulwant Singh Anand Vs. Daljeet Singh Anand 28 RCA NO. 11/14 Kulwant Singh Anand Vs. Daljeet Singh Anand