Delhi District Court
Kapil Sachdev vs . Shibani Dass Gupta on 26 August, 2014
Kapil Sachdev Vs. Shibani Dass Gupta
IN THE COURT OF MS. RUBY NAHAR, CIVIL JUDGE6,
WEST DISTRICT, TIS HAZARI COURTS, DELHI.
Suit No. 591/14
Shri Kapil Sachdev
S/o Shri R. N. Sachdeva,
R/o B20 (2nd Floor),
Geetanjali Enclave,
New Delhi110017 ............Plaintiff
Versus
1. Smt. Shibani Das Gupta,
W/o Shri Dipak Das Gupta,
R/o D73, Defence Colony, New Delhi
2. Shri Pinaki Prasad Sen,
S/o Late Shri Jyotsna Moy Sen
R/o B20, Geetanjali Enclave (G.F. & F. F)
New Delhi17.
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Kapil Sachdev Vs. Shibani Dass Gupta
3. Smt. Anuradha Sen,
W/o Late Capt. Amitava Sen,
R/o L29 B, Malviya Nagar, New Delhi
4. Delhi Development Authority
Cooperative Society Cell,
Vikas Sadan, Through Its
Vice Chairman ........ Defendants
SUIT FOR PERMANENT & MANDATORY INJUNCTION.
Date of filing of Suit : 13.09.2007
Date of decision : 26.08.2014
JUDGMENT ON PRELIMINARY ISSUES :
1. The instant suit has been filed by the plaintiff against the defendants
for permanent and mandatory injunction seeking following reliefs:
• Defendant no. 4 be directed to cancel the mutation of the plot bearing no. B
20, Geetanjali Enclave, New Delhi17 in the name of defendant no 1.
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Kapil Sachdev Vs. Shibani Dass Gupta
• Defendant no.4 be restrained from carrying on the conversion of leasehoLd
rights to freehoLd rights in favour of defendant no.1 with respect to B20,
Geetanjali Enclave, New Delhi17.
• Defendant no. 1 to 3 be restrained from selling or entering into any sale or
transfer agreement with any party or parties and cancel all negotiations,
dealings, agreements etc. with respect to B20, Geetanjali Enclave, New
Delhi17 with any party or parties.
2. By way of this order I shall decide the preliminary issues framed by
the Ld. Predecessor vide order dated 12.05.2014 which are as follows:
1. Whether the suit is barred by Section 41 (h) of the Specific Relief
Act?
2. Whether the suit is maintainable on the ground of limitation?
3. Concise facts necessary for adjudicating the preliminary issues are
that Late Sh. Jyotirmoy Sen was the original sublessee of property bearing no.
B20, Geetanjali Enclave, New Delhi17 (hereinafter referred to as 'suit
property'). Late Sh. Jyotirmoy Sen had entered into a Collaboration Agreement
dated 17.10.2001with the plaintiff to buiLd and renovate the suit property and
in addition plaintiff had to pay a consideration amount of Rs. 25 lacs in return
of which late Sh. Jyotirmoy Sen had to, subject to conversion of the plot into
CS No. 591/14 Page No. 3 to 29
Kapil Sachdev Vs. Shibani Dass Gupta
freehoLd, execute a sale deed in favour of the plaintiff with regard to ownership
of the 2nd floor of the suit property. Late Sh. Jyotirmoy Sen expired on 02.01.02
and after his death his legal heirs, defendant no. 1 to 3 did not honour the said
Collaboration Agreement. Rather, defendant no.1 sent a legal notice dated
02.01.04 to the plaintiff cancelling the collaboration agreement.
4. Plaintiff has also stated in the plaint that in support of collaboration
agreement, Late Sh. Jyotirmoy Sen had also executed a Will dated 21.10.2001
in favour of the plaintiff.
5. Plaintiff has further alleged in the plaint that the defendant no.1 got
the suit property mutated in her name from Defendant no.4/DDA, on the basis
of the relinquishment deed executed by defendant no.3 in favour of defendant
no.1, by making false statement that Late Sh. Jyotirmoy Sen died intestate and
also concealed the collaboration agreement dated 17.10.2001 and Wills of Late
Sh. Jyotirmoy Sen dated 06.03.1987 & 21.10.01.
6. It is further submitted that, defendant no.2 filed a suit for Declaration,
Permanent and Mandatory Injunction bearing suit no. 87/04 on 06.04.04 against
Defendant no.1, Plaintiff and Defendant no. 3 on the basis of the Will dated
06.03.1987claiming his rights on the second floor of the suit property against
Defendant no.1, Plaintiff and Defendant no. 3. The said suit was disposed of as
compromised vide compromise order dated 18.12.2006 wherein, Defendant
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Kapil Sachdev Vs. Shibani Dass Gupta
no.1 recognized the right of defendant no.2 as owner of the 2nd floor of the suit
property.
7. Defendant no.1 filed the written statement taking preliminary
objections that the plaintiff has no locus standi to file the present suit, the plaint
does not disclose any cause of action, suit is barred under section 41(h) of the
Specific Relief Act,1963 and the relief claimed is barred by time. Defendant
no.2 and 4 also filed Written statement. Subsequent thereto, defendant no.2 was
proceeded ex parte vide order dated 21.03.2011 and defendant no.3 was
proceeded ex parte vide order dated 25.05.2012.
8. It is pertinent to mention here that the application under order VII
Rule 11 filed on behalf of defendant no.1 was dismissed by Ld. Predecessor
vide order dated 31.10.2011. Consequently, defendant no.1 filed revision
petition against the said order before the Hon'ble High Court and vide order
dated 12.03.2014 Hon'ble High Court remanded the matter back to this court to
decide the suit on the ground of maintainability and limitation. Subsequent
thereto, two preliminary issues as stated above were framed by the Ld.
Predecessor vide order dated 12.05.2014.
9. I have heard the rival contentions of the Ld. Counsel for the parties at
length and perused the record carefully.
CS No. 591/14 Page No. 5 to 29
Kapil Sachdev Vs. Shibani Dass Gupta
10. It has been argued by the Ld. counsel for defendant no.1 that the
present suit for Permanent and Mandatory Injunction is barred under section 41
(h) of the Specific Relief Act as permanent injunction cannot be granted when
an equally efficacious remedy is available and Collaboration Agreement dated
17.10.2001 being akin to agreement to sell does not create any enforceable right
in favour of plaintiff and therefore plaintiff couLd have only filed a suit for
specific performance of the said agreement or a suit for declaration or suit for
damages.
11. It has been further argued that the Collaboration Agreement dated
17.10.2001 was validly terminated vide legal notice dated 02.01.04 and the said
termination was not challenged by the plaintiff and therefore, now plaintiff does
not even have a right to sue for specific performance, same being barred by
limitation. Further, defendant no.1 got the suit property mutated in her name on
31.05.02 and plaintiff has deliberately not mentioned the date in the plaint as
plaintiff had filed objection on 23.11.06 which is barred by limitation and
therefore plaintiff cannot seek direction for cancellation of said mutation. It is
argued that Plaintiff can seek cancellation of mutation only if he had a pre
existing and unchallenged ownership right in the suit property or if he seeks a
declaratory relief with respect to ownership.
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Kapil Sachdev Vs. Shibani Dass Gupta
12. It is submitted by Ld. counsel for defendant no.1 that the plaintiff has
approached this court with unclean hands in as much as he has deliberately and
intentionally not disclosed the factum of his having filed a probate petition on
01.06.06 in respect of Will dated 21.10.2001 relied upon by the plaintiff and the
same having been dismissed by Ld. ASJ vide order dated 20.01.07 hoLding that
plaintiff cannot claim any right in the suit property on the basis of the said Will.
It was further heLd that it is a case of breach of contract and the plaintiff can
only claim damages or sue for specific performance but he cannot be granted
letter of administration on the basis of the draft Will.
13. It is further submitted that the plaintiff had also filed review petition
against order dated 18.12.06 vide which suit of defendant no.2 was disposed of
as compromised and the said review petition was also dismissed on 20.04.09.
Thereafter plaintiff went to High Court against the said order wherein Hon'ble
High Court also dismissed the petition of the plaintiff on 16.07.09 hoLding that
no counter claim was ever made by the plaintiff in respect of the 2nd floor to the
suit property. Subsequent thereto, plaintiff filed Special Leave Petition
impugning order of High Court, the said SLP was also dismissed. Therefore,
compromise dated 18.12.06 arrived between the parties has attained finality and
in view of the same now, defendant no. 2 is the rightful owner of the 2nd floor
of the suit property.
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Kapil Sachdev Vs. Shibani Dass Gupta
14. It is also submitted that in the above mentioned suit filed by
Defendant no.2 herein, plaintiff never claimed any ownership right in the 2nd
floor of the suit property rather set up a claim of a tenant and now the law of
estoppel bars the plaintiff from claiming ownership rights to the second floor of
the suit property and further any contrary plea is barred by order II rule 2 CPC.
15. It has also been contended by Ld. counsel for the plaintiff that the
Collaboration Agreement dated 17.10.01 is not a registered document though it
ought to have been registered in terms of section 53A of Transfer of Property
Act read with section 17 (1A) of the Registration Act read with section 23A of
the Stamp Act.
16. To the contrary, it is submitted by Ld. Counsel for the plaintiff that
the plaintiff is seeking cancellation of mutation in the name of defendant no.1
because the same was obtained by defendant no. 1 by playing fraud on the
authorities and by suppressing material facts and giving false statements
inasmuch as defendant no.1 made a false statement while obtaining mutation
from defendant no.4 that Late. Sh. Jyotirmoy Sen i.e the original lessee had died
intestate. Whereas, defendant no.2 has categorically taken the stand that Late.
Sh. Jyotirmoy Sen bequeathed the said property to him vide Will dated
06.03.1987.
CS No. 591/14 Page No. 8 to 29
Kapil Sachdev Vs. Shibani Dass Gupta
17. It has been further contended by Ld. Counsel for the plaintiff that the
maintainability of the suit has already been decided by the Ld. Predecessor vide
order dated 31.10.2011 while deciding the application of the defendant no.1
under order 7 rule 11 CPC wherein this court also took note of the fact that at
the time of obtaining mutation defendant no.1 prima facie concealed the Will
dated 06.03.1987 and Collaboration Agreement dated 17.10.2001from the
defendant no.4.
18. It has been further argued by learned counsel for the plaintiff that the
plaintiff is admittedly in possession of the 2nd floor of the suit property since
year 2001 and defendant no.1 has not taken any legal steps to evict the plaintiff
by way of counter claim or otherwise and therefore, now plaintiff has become
the owner of the 2nd floor of the suit property by way of adverse possession.
19. It is further contended by learned counsel for the plaintiff that the
limitation wouLd start against the plaintiff only when he came to know about
the mutation and mutation letter is not a registered document which wouLd
make it public record. Further defendant no.1 also did not disclose about the
mutation in her notice dated 02.01.2004
20. It has also been contended by Ld. counsel for the plaintiff that the
order of Ld. ADJ dated 20.01.07 is only an obiter dicta. Probate petition was
dismissed only on the ground that the will is draft will.
CS No. 591/14 Page No. 9 to 29
Kapil Sachdev Vs. Shibani Dass Gupta
21. I have heard the learned counsel for the parties at length and gone
through the relevant case laws relied upon by the parties and carefully perused
the record.
22. My issue wise findings on the preliminary issues are as under:
Preliminary Issue No. 1 : Whether the suit is barred by Section 41(h) of
the Specific Relief Act ?
23. Section 41 (h) of the Specific Relief Act, 1963 lays down that an
injunction cannot be granted when equally efficacious relief can certainly be
obtained by any other usual mode of proceeding except in case of breach of
trust.
24. The entire case of the plaintiff revolves around the Collaboration
Agreement dated 17.10.01 executed between the plaintiff and Late Sh.
Jyotirmoy Sen. Plaintiff is seeking all his rights and interests in the suit
property through the said Collaboration Agreement.
25. Perusal of Collaboration Agreement clearly shows that the possession
of the 2nd floor of the suit property was given to the plaintiff under the
Collaboration Agreement only for the purpose of renovation /construction in
terms of the Collaboration Agreement. As per the Collaboration Agreement
plaintiff had to buiLd and renovate the suit property and in addition had to pay
CS No. 591/14 Page No. 10 to 29
Kapil Sachdev Vs. Shibani Dass Gupta
Rs. 25 lacs and in return Sh. Jyotirmoy Sen had to, subject to conversion of plot
into freehoLd, execute a sale deed in favour of the plaintiff w.r.t 2nd floor of the
suit property.
26. I find force in the contention of the Ld. Counsel for defendant no.1
that the Collaboration Agreement at best was an Agreement to Sell under
which plaintiff had to renovate the property and in addition had to pay a total
sum of Rs 25 lacs and only then a Sale deed w.r.t 2nd floor of the suit property
was to be executed in favor of plaintiff and the only relief available to the
plaintiff was to file a suit for damages or specific performance of the agreement.
27. Ld. Counsel for the defendant no.1 has placed reliance on number of
judgments of Hon'ble Apex Court and various High Courts, however, it wouLd
be pertinent to refer to one of them here. In Shashi v. Sudershan Sharma;
RFA 596/2004 decided on 20.12.2013 it was heLd by Hon'ble Delhi High
Court as follows:
"A mere agreement to sell does not create any rights in the
property. It only gives a right to enforce the same to acquire
rights in the property. Reference if any required, can be made
to Suraj Lamp & Industries Pvt. Ltd. Vs. State of Haryana
(2012) 1 SCC 656. When such agreement to sell is
accompanied with delivery of possession of the property
agreed to be soLd, Section 53A of the Transfer of Property
CS No. 591/14 Page No. 11 to 29
Kapil Sachdev Vs. Shibani Dass Gupta
Act, 1882 debars the seller from enforcing against the
purchaser any right other than as provided in the agreement
to sell. However Section 53A has in Mohan Lal Vs. Mirza
Abdul Gaffar (1996) 1 SCC 639 been heLd to be only a
shieLd and not a sword. It is a right in favour of purchaser to
defend his possession. It was heLd in Bhulkoo Ghasalya Vs.
Hiriyabai AIR 1949 Nagpur 410 that if a purchaser is
forcibly ejected by the seller, he can file a suit for recovery of
possession not pursuant to Section 53A but under Section 6 of
the Specific Relief Act. In my view the appropriate remedy of
such an agreement purchaser of immovable property is only
to sue for specific performance of the Agreement of Sale in
his favour and for recovery of possession. The remedy of such
an agreement purchaser divested of possession can by no
stretch of imagination be of permanent injunction only.
27. Once that is found to be the position, the relief of
permanent injunction claimed wouLd also be barred by
Section 41(h) of the Specific Relief Act, 1963 which provides
that when equally efficacious relief can be obtained by any
other usual mode of proceeding, an injunction cannot be
granted.
28. Not only did the respondent in the present case controvert
the Agreement of Sale in favour of the appellant and delivery CS No. 591/14 Page No. 12 to 29 Kapil Sachdev Vs. Shibani Dass Gupta of possession in pursuance thereto but the respondent vide notice dated 9th November, 1995 and subsequently on 20th November, 1995, i.e. prior to the institution of the suit also cancelled the Agreement to Sell, Power of Attorney, Will etc. by registering cancellation deeds thereof. Thus, as on the date of institution of the suit, the documents on the basis whereof the appellant claimed title as agreement purchaser in possession of the property also did not exist and stood cancelled. The appellant, without seeking cancellation of the documents by which the Agreement to Sell Power of Attorney, Will etc. in his favour had been revoked, couLd not on the basis of cancelled documents claim title".
28. I further find force in the contention of the Ld. Counsel for defendant no.1 that the Collaboration Agreement dated 17.10.2001 is not a registered document though it ought to have been registered in terms of section 53A of the Transfer of Property Act read with section 17(1A) of the Registration Act. In this regard reliance has been placed by Ld counsel for defendant no.1 on judgment of Hon'ble Delhi High Court in case titled as Mac Associates v. S.P.Singh Chandel; (2013) 198 DLT (CN) 9 wherein, it was heLd as follows: CS No. 591/14 Page No. 13 to 29
Kapil Sachdev Vs. Shibani Dass Gupta "13. If the matter is viewed from another angle then also suit for possession on the basis of Collaboration Agreement, which at best can be taken at par with the Agreement to Sell, is not maintainable even if, for the sake of arguments, it is accepted that the respondent was agent of appellant.
Agreement to Sell does not vest any right in favour of a person to the possession of property. Even if a person is put in possession of property through an Agreement to Sell, he cannot protect his possession on the pretext of part performance under Section 53A of the Transfer of Property Act, 1882 unless such an agreement is a registered document. Section 17 (1A) of the Registration Act, 1908, which has come into force with effect from 24th September, 2001, reads as under: Documents containing contracts to transfer for consideration, any immoveable property for purpose of Section 53A of the Transfer of Property Act, 1882 shall be registered if they have been executed on or after the commencement of the Registration and other Related Laws (Amendment) Act, 2001 and if such documents are not registered on or after such commencement, they shall have no effect for the purpose of the said Section 53A. CS No. 591/14 Page No. 14 to 29 Kapil Sachdev Vs. Shibani Dass Gupta Once a person cannot even protect the possession, which he is hoLding, in absence of an unregistered Agreement to Sell, then how such a person can seek possession on the basis of such a document. In Sunil Kapoor v/s Himmat Singh & Ors. 167 (2010) Delhi Law Times 806, a Single Judge of this Court has heLd thus "a mere agreement to sell of immovable property does not create any right in the property save the right to enforce the said agreement. Thus, even if the respondents/plaintiffs are found to have agreed to sell the property, the petitioner/defendant wouLd not get any right to occupy that property as an agreement purchaser. This Court in Jiwan Das v/s Narain Das, AIR 1981 Delhi 291 has heLd that in fact no right inure to the agreement purchaser, not even after the passing of a decree for specific performance and till conveyance in accordance with law and in pursuance thereto is executed."
29. Further, plaintiff in addition to Collaboration Agreement dated 17.10.01 has also placed reliance on Will dated 21.10.2001 alleged to be executed by late Sh. Jyotirmoy Sen in favor of plaintiff but the plaintiff did not disclose the factum of his having filed a probate petition on 01.06.06 against CS No. 591/14 Page No. 15 to 29 Kapil Sachdev Vs. Shibani Dass Gupta Will dated 21.10.2001and the same having been dismissed by Ld. ASJ vide order dated 20.01.07. It is clear that the plaintiff has deliberately and intentionally concealed the said fact from the court and on this ground itself suit of the plaintiff is barred under section 41 (i) of the Specific Relief Act, 1963.
30. By way of instant suit plaintiff is also seeking that defendant no.4/ DDA be directed to cancel the mutation of the suit property in favour of defendant no.1. In this regard it has been argued by the Ld. Counsel for the plaintiff that the mutation has been obtained by misrepresentation/ concealment of facts by the defendant no.1 inasmuch as defendant no.1 had made a false statement while obtaining mutation from defendant no.4 that Late. Sh. Jyotirmoy Sen i.e the original lessee had died intestate. Whereas, defendant no.2 had categorically taken the stand that Late. Sh. Jyotirmoy Sen bequeathed the said property to him vide Will dated 06.03.1987.
31. It is pertinent to mention here that the dispute between defendants amongst themselves with regard to the ownership of the suit property was settled vide compromise dated 18.12.2006 arrived at between the defendants in suit no.87/2004 filed by the defendant no. 2 herein and the said compromise has attained finality after Special Leave Petition filed by the plaintiff against said compromise has been dismissed by Hon'ble Supreme Court vide order dated 09.07.2010.
CS No. 591/14 Page No. 16 to 29
Kapil Sachdev Vs. Shibani Dass Gupta
32. As per the discussion above it is clear that the plaintiff has no right, title or interest in the 2nd floor of the suit property. Moreover, it is not the case of the plaintiff that he's the owner, therefore, plaintiff cannot seek cancellation of the mutation in favour of the defendant no.1 on the basis that the same has been obtained by defendant no.1 by misrepresentation and concealment. Furthermore, the argument advanced by the plaintiff that he has become the owner of the suit property by adverse possession does not come to the rescue of the plaintiff for the simple reason that the said plea was never put forward by the plaintiff in his pleadings and now at this stage plaintiff cannot de novo raise the plea of being owner on the basis of adverse possession.
33. Keeping in view the above mentioned discussion, this court is of the considered opinion that admittedly plaintiff has no right, title or interest in the suit property. Plaintiff came in possession of the 2nd floor of the suit property on the basis of the Collaboration Agreement for the purpose of renovation/construction. No right in the suit property was ever transferred in favour of plaintiff, still the plaintiff is enjoying the property since year 2001. At the best plaintiff can be said to be in possession of the suit property in the capacity of a caretaker. In Maria Margarida Sequeira Fernandes & Ors v. Erasmo jack De Sequeira (Dead) through LRs; (2012) 5 SCC 370 Hon'ble Apex Court heLd that:
CS No. 591/14 Page No. 17 to 29
Kapil Sachdev Vs. Shibani Dass Gupta "101. Principles of law which emerge in this case are crystallized as under:
1. No one acquires title to the property if he or she was allowed to stay in the premises gratuitously. Even by long possession of years or decades such person wouLd not acquire any right or interest in the said property.
2. Caretaker, watchman or servant can never acquire interest in the property irrespective of his long possession.
The caretaker or servant has to give possession forthwith on demand.
3. The Courts are not justified in protecting the possession of a caretaker, servant or any person who was allowed to live in the premises for some time either as a friend, relative, caretaker or as a servant.
4. The protection of the Court can only be granted or extended to the person who has valid, subsisting rent agreement, lease agreement or license agreement in his favour.
5. The caretaker or agent hoLds property of the principal only on behalf of the principal. He acquires no right or interest CS No. 591/14 Page No. 18 to 29 Kapil Sachdev Vs. Shibani Dass Gupta whatsoever for himself in such property irrespective of his long stay or possession."
34. Having regard to the aforesaid, I am of the considered opinion that the plaintiff has no right to seek the relief of permanent injunction against the defendants to the effect that they be restrained from selling or entering into any sale or transfer agreement with any party or parties and cancel all negotiations, dealings, agreements etc. with respect suit property with any party or parties much less the relief of Mandatory Injunction. The only remedy available to the plaintiff in view of the Collaboration Agreement was either to file a suit for specific performance or suit for damages and therefore the present suit of the plaintiff is barred under section 41(h) of the Specific Relief Act.
35. Hence this issue is decided in favor of the defendants and against the plaintiff.
Preliminary Issue no. 2 : Whether the suit is maintainable on the ground of limitation?
36. Ld. Counsel for the plaintiff has contended that the question of limitation with respect to the instant suit has been extensively dealt with by the Ld. Predecessor in order dated 31.10.2011,while deciding application of defendant under order 7 rule 11, and therefore the same cannot be raised again. CS No. 591/14 Page No. 19 to 29
Kapil Sachdev Vs. Shibani Dass Gupta However, perusal of the said order falsifies the contention of the Ld. Counsel as the Ld. Predecessor has nowhere in the said order discussed /decided the question of limitation.
37. It has been argued by Ld. Counsel for the plaintiff that the mutation letter is not a registered document which wouLd make it a public record and therefore limitation wouLd start only when the factum of mutation having been granted in favour of Defendant no.1 will come to the knowledge of the plaintiff. It has been also argued that even in her notice dated 02.01.04, cancelling the Collaboration Agreement, defendant no.1 did not disclose the factum of mutation having been done in her favour.
38. Ld. counsel for the plaintiff has further argued that since the defendant no.1 has obtained mutation by way of concealment and misrepresentation of facts, therefore, Section 17 of the Limitation Act will apply and thus, the instant suit is within limitation.
39. On the other hand, Ld. counsel for the defendant no.1 has argued that the only relief available to the plaintiff was to file a suit for specific performance, for which the cause of action arose on 02.01.2004 when defendant no.1 sent the notice cancelling the Collaboration Agreement. It has been argued that the said termination was not challenged by the plaintiff and therefore even if the plaintiff had any cause of action it has now become time barred. CS No. 591/14 Page No. 20 to 29
Kapil Sachdev Vs. Shibani Dass Gupta
40. Ld. Counsel for defendant no.1 has further argued that the mutation was carried out in favor of defendant no.1 on 31.05.02 and the objection was raised by the plaintiff on 23.11.06 which is hopelessly barred by time.
41. It has also been argued that as per Section 17 of the Limitation Act date of knowledge is required and plaintiff has neither in his pleadings nor in objection letter dated 23.11.06 written to DDA has stated as to when and how he came to know about the mutation having been done in favour of defendant no.1 and as per the pleadings of the plaintiff cause of action first arose on 02.01.04 and suit was filed in September 2007, thus suit is barred by limitation.
42. I have heard the Ld. Counsel for the parties at length on the point of limitation.
43. It is the contention of the Ld. Counsel for the plaintiff that the period of limitation for cancellation of mutation in favour of defendant no. 1will begin from the date of knowledge i.e. the date when the plaintiff came to know about the mutation in favour of defendant no.1 but nowhere in his pleadings plaintiff has mentioned as to when and in what manner he came to know about the mutation having been done in favour of defendant no.1.
44. It wouLd be pertinent here to reproduce the 'cause of action' clause of the plaint wherein plaintiff has averred as under: CS No. 591/14 Page No. 21 to 29
Kapil Sachdev Vs. Shibani Dass Gupta " That the cause of action accrued in favour of the plaintiff as against the defendant when the defendant no. 1 had filed her Mutation application in the defendant No. 4's office on the basis of false documents i.e. Undertaking, Affidavit and Indemnity Bond. It further arose when the defendant no. 4 granted the mutation in favour of the defendant no. 1. It further arose when the defendant no. 2 and the defendant no. 3 withdrew their objections from the defendant no. 4's office without any lawful reason but due to an illegal understanding with the defendant no. 1 by accepting some illegal gratification. It further arose on 18.12.2006 when the defendant no. 1 with the collusion of the defendant no. 2 compromised the case and withdraw his case against the Plaintiff. The cause of action still continues in favour of the plaintiff since the defendant no. 1 has applied for conversion of lease hoLd rights to freehoLd rights in her sole name and the defendant no. 4 has accepted the same and is processing the same at express speed and the defendant no. 4 is dragging its feet over the objections filed by the plaintiff and has not acted upon the same".
45. Further, according to Article 59 of the Schedule of the Limitation Act,1963, a suit for cancellation or to set aside an instrument or a decree or for the recession of a contract, the period of limitation is three years but this period of three years is to be reckoned with effect from the date, when the facts entitling the plaintiff to have the instrument or decree cancelled or set aside or the contract rescinded first become known to him.
CS No. 591/14 Page No. 22 to 29
Kapil Sachdev Vs. Shibani Dass Gupta
46. However, perusal of cause of action clause, reproduced hereinabove clearly show that the plaintiff has nowhere stated as to when he came to know about the mutation having been done in favour of defendant no.1.
47. Having regard to the aforesaid, this court is of the considered opinion that the question of limitation in the facts of the present case can not be said to be a question of law only. In order to ascertain the question of limitation parties are required to lead evidence.
48. In this regard reliance can be placed upon the judgment of the Hon'ble Apex Court in case titled Ramesh B. Desai and Ors v. Bipin Vadilal Mehta and Ors; AIR2006SC3672 wherein Apex Court heLd as under:
"12. Subrule (2) of Order XIV Rule 2 CPC lays down that where issues both of law and of fact arise in the same suit, and the Court is of opinion that the case or any part thereof may be disposed of on an issue of law only, it may try that issue first if that issue relates to (a) the jurisdiction of the Court, or (b) a bar to the suit created by any law for the time being in force. The provisions of this Rule came up for consideration before this Court in Major S.S. Khanna v. Brig. F.J. Dillon [1964]4SCR409 , and it was heLd as under: CS No. 591/14 Page No. 23 to 29
Kapil Sachdev Vs. Shibani Dass Gupta Under Order 14 Rule 2 where issues both of law and of fact arise in the same suit, and the Court is of opinion that the case or any part thereof may be disposed of on the issues of law only, it shall try those issues first, and for that purpose may, if it thinks fit, postpone the settlement of the issues of fact until after the issues of law have been determined. The jurisdiction to try issues of law apart from the issues of fact may be exercised only where in the opinion of the Court the whole suit may be disposed of on the issues of law alone, but the Code confers no jurisdiction upon the Court to try a suit on mixed issues of law and fact as preliminary issues. Normally all the issues in a suit shouLd be tried by the Court: not to do so, especially when the decision on issues even of law depends upon the decision of issues of fact, wouLd result in a lopsided trial of the suit.
Though there has been a slight amendment in the language of Order XIV Rule 2 CPC by the Amending Act, 1976, but the principle enunciated in the above quoted decision still hoLds good and there can be no departure from the principle that the Code confers no jurisdiction upon the Court to try a suit CS No. 591/14 Page No. 24 to 29 Kapil Sachdev Vs. Shibani Dass Gupta on mixed issue of law and fact as a preliminary issue and where the decision on issue of law depends upon decision of fact, it cannot be tried as a preliminary issue.
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 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 CS No. 591/14 Page No. 25 to 29 Kapil Sachdev Vs. Shibani Dass Gupta 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."
Also in Khaja Quthubullah v.Government of Andhra Pradesh and others; AIR1995AP43 Hon'ble High Court Of Andhra Pradesh heLd that:
" The law appears to be settled, that the question of limitation is not a pure question of law, but it is a mixed question of law and fact. In fact adverting to such situations where the rejection of the plaint is sought under Order 7 Rule 11(c) C.P.C., this court has authoritatively heLd in Vedapalli Suryanarayana v. Poosarla Venkata Sankara Suryanarayana (1980) 1 ALT 488 that a plaint is not liable to be rejected on the ground of bar of limitation since it wouLd be something different from disposal of the matter on other grounds. The bar of limitation has so many ingredients. If a party to the litigation sets up a contention that the suit is barred by limitation, the court has. first of all to examine (1) the cause of action in the suit, (2) when the cause of action commences, (3) when the parties act in a CS No. 591/14 Page No. 26 to 29 Kapil Sachdev Vs. Shibani Dass Gupta particular fashion as to fix the cause of action and (4) ultimately what is the result flowing from such cause of action. Even while operating Articles 18 and 25 of the Limitation Act, the Court was bound to examine as to when the parties stood at conditions to fulfil their obligations, and when the money became liable to be paid. These are questions of fact to be' examined on the basis of the evidence produced by the parties in the case based on the pleadings. If we go through the pleadings in the suit, it is very clear that the parties have remained at issues on several matters. Particularly when the cause of action was specifically set up in the plaint which was challenged by the defendants in the written statement, it emanates many questions of fact which were in controversy the court was bound to decide them based upon the evidence produced. Without resorting to probe such serious matters, learned Sub Judge very lightly treated the question of limitation as if it is a pure question of fact. The learned Advocate fyr. Prabhakar Reddy putting serious efforts tq probe into the matter has taken this court through the exposition of the great author Salmond on Jurisprudence (12th Edition pages 65 to 75). The CS No. 591/14 Page No. 27 to 29 Kapil Sachdev Vs. Shibani Dass Gupta jurisprudential concept of question of fact, question of law and mixed question of law and fact are well detailed in lucidity in the said authoritative expressions of the learned author anditem that there remains no doubt that the question of limitation wouLd be a mixed question of law and fact. Under the circumstances, the learned Sub Judge was not right in deciding the question of limitation as a preliminary issue."
49. Thus, whether or not the suit is maintainable on the ground of limitation is a question which can be effectively adjudicated after both the parties have led their respective evidence. Moreover, as the suit itself has been heLd to be barred under section 41 (h) of the Specific Relief Act, the question of limitation becomes redundant.
50. In view of my findings with respect to the preliminary issues, the present plaint stands rejected U/o 7 Rule 11 (d) CPC being barred by the provisions of Section 41 (h) of the Specific Relief Act, 1963.
51. In view of the above since the present suit itself is barred under the provisions of section 41 (h) of Specific Relief Act, I do not deem it necessary to decide the pending applications and pending applications ,if any, are dismissed as having become infructuous.
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Kapil Sachdev Vs. Shibani Dass Gupta
52. File be consigned to record room after due compliance.
Pronounced in the open court (Ruby Nahar)
on 26.08.2014. Civil Judge06/West/Delhi
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