Delhi District Court
Mandir Garh Mukteshwar Tonk Gaur ... vs Smt. Rattan Kaur on 7 March, 2022
IN THE COURT OF MS. NEHA GARG
CIVIL JUDGE-01, CENTRAL DISTRICT, DELHI
Suit No:-596108/2016
1. Mandir Garh Mukteshwar Tonk Gaur Brahaman
Trust having its office at 398, Kucha Bulaki Begum,
Dariba Kalan, Delhi, through its surviving trustees.
2. Shri K.C. Rana,
S/o Late Shri Bawa Shiv Ram,
R/o 4760, Jogiwara, Nai Sarak,
Delhi-110060.
3. Shri Mam Chand Sharma,
S/o Late Shri Laxmi Narain Sharma,
R/o 1007, Gali Lare Wali,
Maliwara, Delhi-110006.
4. Shri Karan Singh,
S/o Shri Madan Lal,
R/o House No. 278, Meera Ki Reti,
Garh Mukteshwar,
Ghaziabad, U.P.
5. Shri Jai Bhagwan,
S/o Shri Babu Ram,
R/o House No. 226/3,
Chotta Bhazar, Garh Mukteshwar,
Ghaziabad, U.P.
6. Shri Kedar Sharma,
S/o Late Shri Maya Ram Sharma,
Chotta Bazar,
Garh Mukteshwar,
Ghaziabad, U.P. ...........Plaintiffs
Versus
1. Smt. Rattan Kaur,
W/o Shri Ram Singh,
R/o 75, Sarojini Park,
Suit No. 596108/2016
Mandir Garh Mukteshwar Tonk Gaur Brahaman Trust Vs Smt. Rattan Kaur
Page No.28/28
Shastri Nagar,
Delhi.
2. Smt. Shakuntala Devi,
W/o Shri Ram Chand,
R/o 2021, Katra Lachhu Singh,
Chandni Chowk,
Delhi.
3. Shri Ved Prakash (now deceased) and
represented by his Legal Heirs
A. Smt. Krishna Sharma (Widow)
B. Shri Ravi Sharma (Son)
Both residents of 398, Kucha, Bulaki Begum,
Dariba Kalan, Delhi-110006.
C. Smt. Renu Sharma
W/o Shri Ramesh Sharma
Resident of House No. 4272,
Gali Bhaironwali, Jogiwara,
Nai Sarak,
Delhi-110006.
4. Shri Chander Bhan Sharma,
S/o Shri Ram Prashad Sharma,
Resident of House No. 398,
Kucha Bulaki Begum,
Dariba Kalan,
Delhi-110006. ............. Defendants
Date of institution of suit : 16.10.2004
Date of pronouncement of Judgment : 07.03.2022
SUIT FOR DECLARATION WITH CONSEQUENTIAL RELIEF OF
PERPETUAL INJUNCTION
JUDGMENT
1. The present suit was filed on 16.10.2004 for declaration with consequential relief of perpetual injunction. The brief facts of the case as culled out from Suit No. 596108/2016 Mandir Garh Mukteshwar Tonk Gaur Brahaman Trust Vs Smt. Rattan Kaur Page No.28/28 the plaint are that plaintiff No.1 is a trust which was created by Smt. Jamuna Devi, W/o Late Shri Thakur Dass and the plaintiff No.2 to 6 are the present surviving trustees of the plaintiff No.1 Trust. That Smt. Jamuna Devi had no child and was the registered owner of the properties bearing No. 398, Kucha Bulaki Begum, Dariba Kalan, Delhi-110006 (herein after referred to as 'the suit property') and also at Chotta Bazar, Garh Mukteshwar in U.P. That Smt. Jamuna Devi had died around 1940 leaving behind no legal heirs and the factum of the said properties being given in trust are apparent from the fact that there is a stone slab installed in both the said properties which clearly shows that Smt. Jamuna Devi had categorically mentioned that the said properties cannot be sold or mortgaged and that this declaration is duly mentioned on the said stone slabs existing thereon which is dated 03.09.1938 and the photographs of stone slabs installed in both the said properties are annexed with the plaint. That the Trust was being managed by the trustees that is by the plaintiffs No.2 and 3 along with Shri Bishan Sarup at Delhi and by plaintiffs No.4 to 6 at Garh Mukteshwar, Ghaziabad, U.P. That the aforesaid trustees at the Mandir Garh Mukteshwar, U.P. had been managing the affairs properly and the said Mandir has been maintained and looked after well by them with the aid and assistance of the devotees there but it appears that due to the old age and illness of the plaintiffs No.2 and 3 , Shri Bishan Sarup was alone managing the affairs at Delhi himself and Shri Bishan Sarup took full advantage of the situation and instead of spending the income upon the property No. 398, Kucha Bulaki Begum, Dariba Kalan, Delhi, he had been diverting the funds to other places and that he had even utilized the same for the construction of a mandir in his own property at 224, Gali Kunjas, Dariba Kalan, Delhi and had even made shops in the said property taking advantage of the situation of a mandir having been Suit No. 596108/2016 Mandir Garh Mukteshwar Tonk Gaur Brahaman Trust Vs Smt. Rattan Kaur Page No.28/28 constructed in the said property. That Shri Bishan Sarup had however, also died in or around December 1987 and that the rent which was being collected by the aforesaid property No. 398, Kucha Bulaki Begum, Dariba Kalan, Delhi by Shri Bishan Sarup was also not collected thereafter as he alone was issuing rent receipts to the tenants and that at present only two tenants are available in the said property i.e defendant No.3 and 4 in the present suit. That defendant No.1 alleges to have purchased the said Trust property from Shri Bishan Sarup who could not have sold the same when he was only a mere trustee of the plaintiff No.1 and was acting on behalf of the trust while collecting the rent and that he had no personal right in the said property which had been donated by Smt. Jamuna Devi for charitable purposes and the income of rent was to be used for construction of some temple or any other good deed as was the last wish and aim of the plaintiff No.1 Trust which was created by Smt. Jamuna Devi by donating her own properties in view of submissions already made above. That D-3 & 4 were paying the rent to Shri Bishan Sarup till September 1987 or so as per the information gathered from them and that thereafter as Shri Bishan Sarup himself had also become ill and was not able to collect the rent himself, so no rent was being collected from D-3& 4 and any receipt thereafter has to be fictitious under the circumstances. That Shri Bishan Sarup had also directed during his illness to the D-3 & 4 to spend the amount on the proper maintenance and upkeep of the tenanted property and the D-3 & 4 allege to have spent more than the rental amount on the maintenance and proper upkeep of this property of the Trust which in any case is in a very dilapidated condition being an old constructed building which has already outlived its life. That neither Shri Bishan Sarup nor any other person could have executed any sale or could have entered into any agreement to sell with Suit No. 596108/2016 Mandir Garh Mukteshwar Tonk Gaur Brahaman Trust Vs Smt. Rattan Kaur Page No.28/28 regard to the said property No. 398, Kukcha Bulaki Begum Dariba Kalan, Delhi -110006 and that if any sale or will or any agreement was alleged to have been executed by Shri Bishan Sarup, the same could be of no consequence when he himself had no legal status or personal right, title or interest in the said property which was donated by Smt. Jamuna Devi by creating a trust and had even got a stone installed in the said property so that no mischief could have been done by any of the trustees or any person and the name of her husband also remained immortal and that if any mischief is ever contemplated by any trustee the same could be exposed from the said stone slab existing in the said property ever since 1938. That plaintiff had been informed that D-1 had filed an eviction case against the D-3 & 4 and in pursuance of which she had already obtained an order of eviction on 06.09.2001 against D-3. That D-1 or D-2 could not have acquired any right, title or interest in respect of the property bearing No. 398, Kucha Bulaki Begum, Dariba Kalan, Delhi-110006 in view of the said facts and circumstances and the alleged sale of the said property by D-2 in favour of D-1 could not have taken place and any Sale Deed or document if created appears to be manipulated, fabricated and fraudulent and could not be possible under these circumstances. That plaintiffs have made verification from the office of Sub Registrar, Delhi and it appears that a fraud was played by either Shri Bishan Sarup or by Shakuntala Devi/D-2 through a collusive suit filed by them for specific performance and whereby they had been able to obtain a decree in Suit No. 687 of 1986 which was a well- planned conspiracy hatched by them in active connivance with each other and by concealing and suppressing the material facts not only from the said court but also from the other trustees, which fact has recently come to the knowledge of the plaintiffs through the D-3 & 4 who also appear to be hand Suit No. 596108/2016 Mandir Garh Mukteshwar Tonk Gaur Brahaman Trust Vs Smt. Rattan Kaur Page No.28/28 in glove with the other defendants and have only disclosed about this fact after an order of eviction has been obtained by D-1 against D-3. That though there is no document of title on the basis of which Shri Bishan Sarup could have entered into an Agreement to Sell the property of the Trust in his own favour to enable him to sell the same further and that as such the entire transactions of sale made are fraudulent, fictitious, manipulated, void and of no consequence under the law and in view of a well-planned conspiracy already having been hatched and to protect the property of the Trust and to keep alive the sentiments and wishes of the deceased Smt. Jamuna Devi the plaintiffs have filed the present suit. That D-1 & 2 are also trying to create third party interest in respect of the said property of the trust and various property brokers are approaching the builders to raise illegal and unauthorised construction in the said property which had come to the knowledge of plaintiffs only on 06.10.2004. That in view of a sale deed alleged to have been executed by D-2 in favour of D-1 a cloud has been cast on the title of the Trust property. Hence, the present suit.
2. Summons of the suit were issued to the defendants by the Ld. Predecessor of this court upon which the defendant No.1 had put appearance through counsel and D-3 & 4 have entered appearance in person.
It is pertinent to mention here that vide order dated 25.10.2004, upon separate statement given by D-3 & 4 that they will not create any third-party interest in the suit property, the suit qua D-3 & 4 had been disposed off as satisfied.
It is pertinent to mention that D-2 was served through publication, however, despite service, he did not appear and therefore, D-2 was proceeded ex parte vide order dated 28.10.2005.
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3. Written statement was filed on behalf of defendant No.1 wherein it is stated that the present suit is not maintainable on the following grounds: That plaintiffs have no locus standi to file the present suit. That plaintiffs have not come to court with clean hands. That the present suit has been filed by plaintiffs in collusion with D-3 and 4 with the sole motive to evade the process of law. That the present suit has been filed to harass the D-1 and with malafide intention to cause hindrance in the effective execution of the order of eviction passed against D-3 in Suit No. E-11/2001 titled as Smt. Rattan Kaur vs Ved Prakash. That D-3 preferred a revision against the said eviction order vide CR/RC.REV No. 280/2000 which was dismissed vide order dated 10.08.2004. That the present suit is barred by limitation as the property was purchased by D-1 Smt. Rattan Kaur way back in the year 1988 by way of executing a Registered Sale Deed dated 02.04.1988. That from Jamuna Devi the property was inherited by Shri Bishan Sarup Sharma and that he was the sole and exclusive owner of the suit property and that Sh. Bishan Sarup Sharma had sold the said property to Smt. Shakuntala Devi by way of executing a registered Sale Deed dated 20.2.1987 under the court order passed in the decree of specific performance in suit No. 627/86 titled as Smt. Shakuntala Devi vs Shri Bishan Swaroop Sharma. That said Smt. Shakuntala Devi had sold the above said property to D-1 by way of executing a registered Sale Deed dated 02.04.1988 and thus D-1 is the absolute and exclusive owner of suit property. That D-3 & 4 have become tenants under D-1. That there is no cause of action against D-1. That present suit is barred by virtue of Section 41(h) and (j) of Specific Relief Act, 1963. That plaintiffs want to take advantage of their own wrong. That by way of present suit plaintiffs are attempting to seek relief to which they are not Suit No. 596108/2016 Mandir Garh Mukteshwar Tonk Gaur Brahaman Trust Vs Smt. Rattan Kaur Page No.28/28 entitled.
4. Replication was filed on behalf of plaintiff wherein contents of the written statement filed on behalf of D-1 were denied and averments made in the plaint were reaffirmed.
5. It is pertinent to mention here that issues in the present matter are framed twice i.e., vide order dated 05.12.2005.
1. Whether the suit of plaintiff is barred under limitation Act? OPD
2. Whether suit of plaintiff is not maintainable in present form? OPD Thereafter vide order dated 04.12.2010 issue regarding maintainability of the present suit was decided in favour of the plaintiffs and the suit was held to be maintainable. Thereafter matter was fixed for framing of issues.
That following issues were framed vide order dated 10.01.2013: -
1. Whether the present suit is barred by limitation? OPD
2. Whether the present suit is barred by virtue of Section 41(h) and Section 41(j) of Specific Relief Act? OPD
3. Whether the plaintiffs are entitled to the decree of declaration as prayed for? OPP
4. Whether the plaintiffs are entitled to the decree of permanent injunction, as prayed for? OPP
5. Relief Evidence:-
6. Thereafter the matter was listed for plaintiff's evidence.
In order to prove the present case the following witnesses were Suit No. 596108/2016 Mandir Garh Mukteshwar Tonk Gaur Brahaman Trust Vs Smt. Rattan Kaur Page No.28/28 examined on behalf of plaintiffs:-
(i) Mr. Nand Lal Puri (Summoned Witness) as PW-1. PW-1 brought the summoned record i.e., form A showing the names of occupants as Ex.PW1/1(OSR), copy of notice issued with regard to proposed enhancement in the assessment of the R.V. as Ex.PW1/2(OSR), certified copy of demand and collection register as Ex.PW1/3. He deposed that as per said record, property no. 398, Ward No.4, Kucha Bulaqi Begum, Dariba Kalan, Delhi-06 is assessed in the name of Wadf Mandir, C/o Sh. Badri Prasad.
He was duly cross examined and in cross examination he deposed that the photocopy of document Ex.PW1/1D1 showing the assessment in the name of Wakf Mandir is assessed from 01.04.1995. He further stated that Ex.PW1/D1 does not reflect that the said property has been assessed since 01.04.1965.
(ii)Mr. K.C. Rana as PW-2. PW-2 tendered his evidence by way of affidavit Ex.PW2/A and relied upon photographs as Ex.P1(colly), already Ex.PW1/1, Ex.PW1/2 and Ex.PW1/3 and GPA dated 11.10.2004(OSR) as Ex.P3.
(iii)Mr. Tara Chand (summoned witness) as PW-3 brought on record the file pertaining to property bearing No. 398, Kucha Bulaki Begum, Dariba Kalan, Delhi-110006 and exhibited the copy of the same on record as Ex.PW3/A(colly)(running into 40 pages).
(iv) Shri Jai Bhagwan as PW-4. PW-4 tendered evidence by way of affidavit as Ex PW4/A and relied upon the documents already Ex. P3, already Ex. P1 and already Ex.PW1/2(colly). PW-4 was duly cross examined.
Thereafter the plaintiff evidence was closed vide Order dated 11.03.2019 upon separate statement of Attoney of plaintiff recorded in this regard and the matter was listed for defendant's evidence.
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7. In defendant's evidence, defendant got examined herself as DW-1. DW-1 tendered evidence by way of affidavit Ex.DW1/A and relied upon the following documents:-
(i)Sale Deed executed by Sh. Bishan Swarup as Ex.DW1/1(osr)
(ii)Sale Deed executed by Smt. Shakuntala Devi in favour of Smt Rattan Kaur as Ex.DW1/2(OSR)
(iii)Certified copy of plaint in suit No. 627/1986 along with statement of Bishan Swarup and Shakuntala Devi along with judgment and decree as Ex.DW1/3(Colly)
(iv)Settlement dated 26.10.1989 executed by Sh. Devraj Kapoor as Ex.DW1/4(OSR)
(v)Settlement deed "Kiraydari Sampati Khaali Kabza dane ki Tehrir Kucha Bulaqu Begum" as Ex.DW1/5(OSR)
(vi)Photographs of Suit property showing possession of Smt. Rattan Kaur as Ex.DW1/6(colly)
(vii)Certified copy of order of eviction passed against D-3 Shri Ved Prakash by the Court of Sh. Rajeev Mehra, Ld. ARC, Delhi as Ex.DW1/7,
(viii)Copy of certified copy of order dated 10.08.2004 passed by the Hon'ble High Court of Delhi as mark A. DW-1 was duly cross examined.
8. An application for summoning of witnesses filed on behalf of D-1 was allowed and consequentially the following witnesses were examined on behalf of D-1:
(I) Sh. Jitender Kumar, JJA, Record Room, Civil Tis Hazari Courts, Delhi who brought the Goshwara Register of February 1987 of City Mauza and Suit No. 596108/2016 Mandir Garh Mukteshwar Tonk Gaur Brahaman Trust Vs Smt. Rattan Kaur Page No.28/28 deposed that the summoned record pertaining to suit No. 627/86 of case file Smt. Shakuntala Devi vs Bishan Swarup with date of decision 02.02.1987 has been destroyed as per the rules and filed on record the copy of the relevant portion as Ex.DW2/1(OSR).
(II) Shri Parveen Kumar Rana, UDC from Sub Registrar-1, Kashmiri Gate, Delhi as DW-3. DW-3 brought the status report with respect to the summoned record and deposed that the summoned record upto year 1993 has been transferred to the Department Delhi Archives, Govt of NCT of Delhi, 18-A, Satsang Vihar Marg, Special Institutional Area, New Delhi. (III) DW-4:- Sh. Sevajit, Record Attendant,Department of Delhi Archives, Goverment of NCT of Delhi, 18-A, Satsang Vihar Marg, Spl. Institutional Area, New Delhi-110067. DW-4 brought the summoned record i.e., the record of Sale Deed executed by Sh. Bishan Swarup, S/o Late Pandit Badri Prasad in favour of Smt. Shakuntala Devi, W/o of Sh. Ram Chand, dated 20.02.1987, registered vide registration number 967 in Additional Book No.1, Volume No. 4707, on pages 86 to 90, dated 06.03.1987. DW-4 deposed that he has perused the Ex.DW1/1 which is the true copy of the aforesaid Sale Deed brought by me today. Original of the same is seen and returned. He further deposed that he has also brought the summoned record i.e., the record of Sale Deed executed by Smt. Shakuntala Devi, W/o Sh.
Ram Chand in favour of Smt. Rattan Kaur Vaid, W/o Sh. Ram Singh Vaid, dated 22.04.1988, registered vide registration number 2099 in Additional Book No.1, Volume No. 4891, on pages 10 to 15, dated 22.04.1988 and deposed that he has perused the Ex.DW1/2 which is the true copy of the aforesaid Sale Deed brought by me today. Original of the same is seen and returned.
Thereafter defendant's evidence was closed vide order dated 13.03.2020 Suit No. 596108/2016 Mandir Garh Mukteshwar Tonk Gaur Brahaman Trust Vs Smt. Rattan Kaur Page No.28/28 upon separate statement of Ld. Counsel for D-1 recorded to this effect.
9. It is pertinent to mention here that vide order dated 21.05.2019, a Local Commissioner was appointed by Ld. Predecessor of this Court consequent to allowing of application u/O XXVI Rule 9 read with Section 151 CPC and thereafter Local Commissioner filed its report stating that the stone slab in question is very much existing at the suit property since 03.09.1938. That objections were also filed on behalf of D-1 to the report of Local Commissioner.
10.Final Arguments were heard at length and the record is carefully perused by this court.
After giving my thoughtful consideration to the pleadings of the parties, the entire evidence available on record, the written submissions filed on behalf of the parties and after hearing the submissions of both the sides, my issue wise finding in the present matter is as follows:
ISSUE NO.1: Whether the present suit is barred by limitation? OPD
11.The burden to prove the present issue is on the defendant. It is the case of defendant no.1 that the present suit is barred by limitation as the property was purchased by D-1 Smt. Rattan Kaur way back in the year 1988 by way of executing a Registered Sale Deed dated 02.04.1988. The present suit is filed with the relief that the suit property be declared as a Trust property which cannot be sold and mortgaged and no charge can be created thereon. Article 58 of the Limitation Act, 1963 (for short, 'the Act of 1963') is a residuary Article relating to declaratory suits; it governs all suits for declaration which are not covered by any other Article and would not apply Suit No. 596108/2016 Mandir Garh Mukteshwar Tonk Gaur Brahaman Trust Vs Smt. Rattan Kaur Page No.28/28 to suits covered by Articles 56 and 57. In terms of Article 58 of the Act of 1963, the period of limitation would be reckoned from the date on which the cause of action first accrues.
12.It can thus be seen that the starting point of limitation for filing a suit for declaration under Article-58 of the Act of 1963, is when the right to sue "first accrues". The expression right to sue has not been defined in the Act, but, the said expression has been considered in several cases by the Supreme Court.
13.In the State of Punjab vs. Gurdev Singh, MANU/SC/0612/1991: (1991) 4 SCC 1, the expression was explained thus:
"The words "right to sue" ordinarily mean the right to seek re- lief by means of legal proceedings. Generally, the right to sue accrues only when the cause of action arises, that is, the right to prosecute to obtain relief by legal means. The suit must be instituted when the right asserted in the suit is infringed or when there is a clear and unequivocal threat to infringe that right by the defendant against whom the suit is instituted."
14.It is trite law that limitation would not commence unless there has been a clear and unequivocal threat to infringe the right claimed by the plaintiffs. Reliance in this regard is placed on the judgments in C. Mohd. Yunus vs. Syed Unnisa AIR 1961 SC 808; Rukhmabai vs. Laxminarayan AIR 1960 SCC 335 and Mt. Bolo vs. Mt. Koklan AIR 1930 PC 270
15.In C. Mohd. Yunus (supra) it was further held that mere denial by the defendant of the rights of the plaintiffs would not set the period of limitation Suit No. 596108/2016 Mandir Garh Mukteshwar Tonk Gaur Brahaman Trust Vs Smt. Rattan Kaur Page No.28/28 running against them. In Mst. Rukhmabai (supra), it was observed that where there were successive invasions or denials of right, the right to sue would accrue when the defendant had clearly and unequivocally threatened to infringe the right asserted by the plaintiff in the suit. Their Lordships also observed as under:-
"Every threat by a party to such a right, however ineffective and innocuous it may be, cannot be considered to be clear and unequivocal threat so as to compel him to file a suit, whether a particular threat gives right to a compulsory cause of action depends upon the question whether that threat effectively invades or jeopardizes the said right."
16.In the case of Daya Singh Vs. Gurdev Singh (2010) 2 SCC 194, it was held thus, in paragraphs 13 and 14 of the judgment:
"13. Let us, therefore, consider whether the suit was barred by limitation in view of Article 58 of the Act in the background of the facts stated in the plaint itself. Part III of the Schedule which has prescribed the period of limitation relates to suits concerning declarations. Article 58 of the Act clearly says that to obtain any other declaration, the limitation would be three years from the date when the right to sue first accrues.
14. In support of the contention that the suit was filed within the period of limitation, the learned Senior Counsel appearing for the appellant-plaintiffs before us submitted that there could be no right to sue until there is an accrual of the right asserted Suit No. 596108/2016 Mandir Garh Mukteshwar Tonk Gaur Brahaman Trust Vs Smt. Rattan Kaur Page No.28/28 in the suit and its infringement or at least a clear and unequiv- ocal threat to infringe that right by the defendant against whom the suit is instituted. In support of this contention the learned Senior Counsel strongly relied on a decision of the Privy Coun- cil in reported in MANU/PR/0054/1930: AIR 1930 PC 270, Bolo Vs. Koklan. In this decision Their Lordships of the Privy Council observed as follows:
'There can be no 'right to sue' until there is an accrual of the right asserted in the suit and its infringement, or at least a clear and unequivocal threat to infringe that right, by the de- fendant against whom the suit is instituted.'..."
17.Similarly, in the matter of Khatri Hotels Private Limited and another v. Union of India and another (2011) 9 SCC 126, the Supreme Court has considered the earlier decisions of Rukhmabai's case (supra) and Mt. Bolo's case (supra) and held as under:-
"24. The Limitation Act, 1963 (for short, "the 1963 Act") prescribes time limit for all conceivable suits, appeals etc. Section 2(j) of that Act defines the expression "period of limitation" to mean the period of limitation prescribed in the Schedule for suit, appeal or application. Section 3 lays down that every suit instituted, appeal preferred or application made after the prescribed period shall, subject to the provisions of Sections 4 to 24, be dismissed even though limitation may not have been set up as a defence. If a suit is not covered by any specific article, then it would fall within the residuary Suit No. 596108/2016 Mandir Garh Mukteshwar Tonk Gaur Brahaman Trust Vs Smt. Rattan Kaur Page No.28/28 article. In other words, the residuary article is applicable to every kind of suit not otherwise provided for in the Schedule.
30. While enacting Article 58 of the 1963 Act, the legislature has designedly made a departure from the language of Article 120 of the 1908 Act. The word "first" has been used between the words "sue" and "accrued".
This would mean that if a suit is based on multiple causes of action, the period of limitation will begin to run from the date when the right to sue first accrues. To put it differently, successive violation of the right will not give rise to fresh cause and the suit will be liable to be dismissed if it is beyond the period of limitation counted from the day when the right to sue first accrued."
18.Reverting to the facts of the present case, the question would be, when the right to sue first accrued in favour of the plaintiffs for seeking declaration that the suit property is a Trust property which cannot be sold, mortgaged or charged upon. Para 17 of the plaint dealing with cause of action reads as follows:
"That the cause of action arose to the Plaintiff and against the Defendants on every occasion when the title of the Trust was disputed by the defendants and also arose on every occasion when the alleged Sale Deed was executed by the Defendant no.2 in favour of the Defendant no.1 through Court by way of filing a suit for specific performance and also arose on 6 th October 2004 when the Defendants in active connivance with each other were trying to Suit No. 596108/2016 Mandir Garh Mukteshwar Tonk Gaur Brahaman Trust Vs Smt. Rattan Kaur Page No.28/28 create third party interest in respect of the Trust Property and the cause of action is subsisting the threat held out by the Defendants is either restrained.."
It can thus be seen that even according to the plaintiffs, the cause of action for filing the suit arose on every occasion when the title of the Trust was disputed by the defendants. In view of the judgment in Khatri Hotels (supra), period of limitation will begin to run from the date when the right to sue first accrues i.e., the date from which the title of the Trust was for the first time disputed by the defendants. It is worth mentioning that in the entire plaint, plaintiffs have not mentioned the date from which they acquired the knowledge that the suit property has been purchased by defendant no.1 or third-party interest has been created in the suit property by defendants in connivance with each other, as alleged.
19.PW-2/plaintiff no.2 and PW-4/plaintiff no.5 have deposed in their examination in chiefs that it was brought to the notice of the plaintiffs that defendant no.1 has been alleging to have purchased the Trust property from Sh. Bishan Sawrup who could not have sold the same as he was a mere trustee of the plaintiff no.1 and was acting on behalf of the Trust. It is further deposed by PW-2 and PW-4 in their examination in chiefs that they have received the information that defendant no.1 had filed an eviction case against the defendant no.3 and 4 and in pursuance of which she had already obtained an eviction from the Court of Ld. Addl. Rent Controller on 6 th September 2001 against defendant no.3. PW-2 and PW-4 have further deposed in their examination in chiefs respectively, that they had made verification from the office of the Sub-Registrar, Delhi from which it appeared that a fraud was played by either Sh. Bishan Sarup or by Shakuntla Suit No. 596108/2016 Mandir Garh Mukteshwar Tonk Gaur Brahaman Trust Vs Smt. Rattan Kaur Page No.28/28 Devi through a collusive suit filed by them for specific performance and whereby they had been able to obtain a decree in Suit no.687 of 1986 and that this fact came to the knowledge of the plaintiffs through the defendants no.3 and 4, who had disclosed this fact after an order of eviction has been obtained by defendant no.1 against defendant no.2. As is evident from the plaint and the testimonies of PW-2 and PW-4 in their examination in chiefs, plaintiffs have not mentioned the date or the year of having obtained the information that the suit property has been purchased by defendant no.1. Plaintiffs have also not specified the date of obtaining the knowledge about the order of Ld. ARC dated 6.09.2001, though PW-2 has deposed in his cross-examination that he is not aware as to when he came to know that defendant no.1 has filed an eviction case against defendant no.3 and 4. Plaintiffs have also not disclosed the date on which inquiries were made from the office of Sub-Registrar and the knowledge of the alleged fraud by the defendants was so obtained by the plaintiffs. At this stage it is pertinent to turn to the cross-examination of PW-2. It is deposed by PW-2 in his cross- examination that he came to know in the year 1987 that defendant no.1 has purchased the suit property from Bishan Swarup. PW-2 has further deposed in his cross-examination that he came to know about the sale of suit property to defendant no.1 by Smt. Shakuntala Devi in the year 2013.
20.It is the case of defendant no.1 that from Jamuna Devi the property was inherited by Shri Bishan Sarup Sharma and that Sh. Bishan Sarup Sharma had sold the said property to Smt. Shakuntala Devi by way of executing a registered Sale Deed dated 20.2.1987 under the court order passed in the decree of specific performance in suit No. 627/86. That thereafter the said Smt. Shakuntala Devi had sold the suit property to defendant no.1 by way of Suit No. 596108/2016 Mandir Garh Mukteshwar Tonk Gaur Brahaman Trust Vs Smt. Rattan Kaur Page No.28/28 executing a registered Sale Deed dated 02.04.1988. On examination of pleadings of the parties in light of the statement of PW-2 in his cross- examination, it is clear that plaintiffs were well aware in the year 1987 that third party interest has been created in the suit property by the defendants in connivance with each other, though it was only in the year 2013 that plaintiffs acquired the knowledge that defendant no.1 has purchased the suit property from Smt. Shakuntala Devi. Therefore, right to sue in the present matter accrued in the year 1987, when plaintiffs had initially acquired the knowledge that the title of the Trust to the suit property was disputed by the defendants (i.e., defendant no.1 and 2) by creating interest in respect of the suit property.
21.Thus, it can be seen that plaintiffs had obtained the knowledge way back in 1987 that defendants have purchased the suit property whereas the present suit was filed on 16.10.2004. Setting up of a rival title by the defendants (defendant no.1 and 2) in themselves, would amount to a clear and unequivocal denial and/or a cloud on the title of the plaintiffs, of which the plaintiffs were aware in the year 1987. Thus, in my considered view, the suit filed in the year 2004 was clearly barred by limitation.
22.In light of the aforesaid discussion, the present issue is decided in favour of the defendants and against the plaintiff and it is held that the present suit is barred by the Article 58 of the Limitation Act, 1963.
Considering the nature of issue no. 2, 3 and 4, I deem it appropriate to de- cide issue no.3 before issue no.2 and 4.
Suit No. 596108/2016Mandir Garh Mukteshwar Tonk Gaur Brahaman Trust Vs Smt. Rattan Kaur Page No.28/28 ISSUE NO.3: Whether the plaintiffs are entitled to the decree of declaration as prayed for? OPP
23.The burden to prove the present issue is cast on the plaintiffs. It is the case of the plaintiffs that Smt. Jamuna Devi was the registered owner of the suit property. That plaintiff No.1 is a trust which was created by Smt. Jamuna Devi and that the plaintiffs No.2 to 6 are the present surviving trustees of the plaintiff No.1 Trust. That Smt. Jamuna Devi had died around 1940 leaving behind no legal heirs and the factum of the said properties being given in trust are apparent from the fact that there is a stone slab installed in suit property which clearly shows that Smt. Jamuna Devi had categorically mentioned that the suit property cannot be sold or mortgaged and that this declaration is duly mentioned on the said stone slab existing thereon which is dated 03.09.1938. It is in light of these averments that plaintiffs have sought the prayer that a decree of declaration be passed declaring the suit property to the Trust property which cannot be sold, mortgaged or charged upon. The whole case of the plaintiffs rest on a stone slab existing in the suit property. PW-2 and PW- 4 have relied on photographs Ex. P1 (colly), which according to plaintiffs are the photographs of the stone slabs installed in properties bearing No. 398, Kucha Bulaki Begum, Dariba Kalan, Delhi- 110006 i.e., the suit property and also at Chotta Bazar, Garh Mukteshwar in U.P. It is pertinent here to mention that a Local Commissioner was appointed by the Ld. Predecessor of this Court to report on the existence of the stone slab in the suit property and who had submitted his report along with photographs. Thought the plaintiffs have not relied on the report of the Local Commissioner in their evidence, however, in her cross-examination, DW-1 was shown photographs filed along with the report of the Local Commissioner and the witness has admitted that the photographs pertain to Suit No. 596108/2016 Mandir Garh Mukteshwar Tonk Gaur Brahaman Trust Vs Smt. Rattan Kaur Page No.28/28 the suit property and the photographs were Ex.DW1/P-3 to Ex.DW1/P-6. DW-1 has further deposed in her cross-examination that the stone slab which is installed in the suit property is existing since 1938. Therefore, the existence of stone slab in the suit property is not denied by defendant no.1. The stone slab in question reads as follows:
"Smt. Jamuna Devi Ne Apne Swargiya Pati Thakur Das Ki Yaadgar Mein Apna Makaan Garh Mukteshwar Panchyati Mandir Bharma Tatha Sri Krishan Ke Naam Kiya, Is Ko Bechane Ve Rehan Karne Ka Adhikar Kisi Ko Nahi Hai 03.09.1938"
24.It is not denied by the contesting defendant that Smt. Jamuna Devi was the owner of the suit property. It is the case of the plaintiffs that the slab was made/installed in the suit property by Smt. Jamuna Devi. PW-2/plaintiff no.2 has deposed in his cross-examination that he does not know Smt. Jamuna Devi by any way or by any chance and that it was during the days of independence when they used to shout slogans 'Inklab Jindabad' in the lanes, that Smt. Jamuna Devi allowed him to rest in her house. It is not the case of PW-2 that when Smt. Jamuna Devi allowed him to rest in her house, the stone slab was got installed by her in the suit property in his presence. PW-2 has failed to disclose as to how claims that the stone slab has been installed by Smt. Jamuna Devi. Merely, because the slab in question mentions the name of Smt. Jamuna Devi, does not prove that the slab was made / installed by Smt. Jamuna Devi. Furthermore, PW-4/plaintiff no.5 has deposed in his cross-examination that he has not seen Smt. Jamuna Devi and that she had died a long time back. PW-4 has further deposed in his cross- examination that when Smt. Jamuna Devi was alive, he was not even born.
Suit No. 596108/2016Mandir Garh Mukteshwar Tonk Gaur Brahaman Trust Vs Smt. Rattan Kaur Page No.28/28 As is evident from the testimony of PW-4, he has no personal knowledge that the slab in question is got installed by Smt. Jamuna Devi. Plaintiffs have not even disclosed how they have acquired the knowledge that the stone slab was got installed by Smt. Jamuna Devi. Plaintiffs have not placed on record any independent evidence in support of their averments that the slab was got installed by Smt. Jamuna Devi. Merely because the slab in question mentions the name of Smt. Jamuna Devi, does not prove that the slab was got installed by Smt. Jamuna Devi. Furthermore, statement of DW-1 in her cross-examination that the slab in question is existing since 1938 is not proof of the fact that slab was got installed by Smt. Jamuna Devi. Though the existence of the stone slab in the suit property is not challenged, however, plaintiffs have failed to prove that the slab was indeed got installed by Smt. Jamuna Devi. The present case of the plaintiffs fails on this very ground.
25.Now coming to the writing of the slab, what is to be seen in a case of this nature is whether a Trust is validly created and whether all the legal formalities are complied with. In this regard reference is made to provisions of The Indian Trusts Act, 1882 (hereinafter referred to as 'the Trust Act'), which deals with the definition of Trust and the essentials of formation of a valid Trust. Section 3 and 6 of the Trust Act are reproduced as follows:
3. Interpretation-clause "trust":-A "trust" is an obligation annexed to the ownership of property, and arising out of a confidence reposed in and accepted by the owner, or declared and accepted by him, for the benefit of another, or of another and the owner.
6. Creation of trust:-Subject to the provisions of section 5, a Suit No. 596108/2016 Mandir Garh Mukteshwar Tonk Gaur Brahaman Trust Vs Smt. Rattan Kaur Page No.28/28 trust is created when the author of the trust indicates with reasonable certainty by any words or acts (a) an intention on his part to create thereby a trust, (b) the purpose of the trust,
(c) the beneficiary, and (d) the trust-property, and (unless the trust is declared by will or the author of the trust is himself to be the trustee) transfers the trust-property to the trustee
26.In other words, Trust is created by transferring of property by the owner to another for the benefit of third person along with himself. For the creation of a valid Trust, the settler must divest the ownership of Trust property in favour of the trustees, for the beneficial enjoyment by the beneficiary and there must be an unequivocal declaration of the settlor which is binding on him. The objects of the trust must be precise and clearly specified. The trustees shall give their assent to act as trustees to make the Trust a valid one.
27.As in clear from a reading of the stone slab, it does not reflect any intention to create a Trust. It does not even mention the name of any trustees. It does not even provide the description of the property, it merely mentions "apna makaan". It cannot be presumed that the makaan/property mentioned in the slab is the suit property merely because the slab is installed in the suit property. What is mentioned in the slab is that Smt. Jamuna Devi has given her makaan to Garh Mukteshwar Panchayati Mandir Brahma and Sh. Krishna and no one has right to sell or mortgage it. Therefore, a plain reading of the slab in question does not reveal the formation of any Trust.
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28.PW-2 has deposed in his cross-examination that Bishan Swaroop used to re- ceive the rent and issue the receipts to the tenants and that after the death of Sh. Bishan Swaroop in 1987, no receipt was issued to the tenants. PW-1 has further deposed that he never enquired about the tenants. PW-2 has further deposed in his cross-examination that he has not placed on record any docu- ment pertaining to the activities/accounts of the Trust. It belies logic that none of the alleged trustees of the property maintained any accounts of the Trust after death of Bishan Swaroop in 1987 and never inquired about the tenants occupying the suit property. Plaintiffs have alleged that Sh. Bishan Swaroop has diverted the funds of the Trust and yet PW-2 has admitted in his cross-examination that he never took any action against Sh. Bishan Swa- roop for diverting the funds of the Trust. In fact, plaintiff no.2 to 6 have failed to establish how they claim themselves to be the trustees of the suit property as the slab in question, on which the whole case of plaintiffs rest, does not mention their names. All these facts only rebut the case of the plaintiffs that a Trust was created by Smt. Jamuna Devi or that plaintiffs no.2 to 6 are the trustees of the suit property or that the suit property is a Trust property.
29.It is worthwhile to mention here that PW-2 and PW-4 have deposed in their affidavits of evidence Ex.PW2/A and Ex.PW4/A respectively that they had made verification from the office of the Sub-Registrar, Delhi from which it appeared that a fraud was played by either Sh. Bishan Sarup or by Shakuntla Devi through a collusive suit filed by them for specific performance and whereby they had been able to obtain a decree in Suit no.687 of 1986 and that this fact came to the knowledge of the plaintiffs through the defendants no.3 and 4, who had disclosed this fact after an order of eviction has been Suit No. 596108/2016 Mandir Garh Mukteshwar Tonk Gaur Brahaman Trust Vs Smt. Rattan Kaur Page No.28/28 obtained by defendant no.1 against defendant no.2. PW-2 was asked in his cross-examination as to when the aforesaid verification from the office of the Sub-Registrar was made and the witness has deposed that he inquired from the office of the Sub-Registrar/MCD ad came to know that the prop- erty was donated by Smt. Jamuna Devi in the name of Temple Garh Mukht- eshwar. Therefore, it is clear from the aforesaid statement of PW-2 in his cross-examination that suit property is not a Trust property since as per plaintiff no.2's own testimony, the suit property was donated by Smt. Ja- muna Devi. The aforesaid testimony of PW-2 also rebuts the case of the plaintiffs that plaintiff no.2 to 6 are the trustees of the suit property as it was only later on, that plaintiffs have obtained the information that the property has been donated by Smt. Jamuna Devi in the name of Temple Garh Mukht- eshwa and it was thereafter that they have filed the present suit. This fact also explains why no accounts of the activities of the alleged Trust was ever maintained by the plaintiffs or no rent was ever collected by from the ten- ants of the suit property after death of Sh. Bishan Sarup in 1987. It is clear that plaintiffs have terribly failed to prove the creation of any Trust by Smt. Jamuna Devi and that suit property is a Trust property.
30.Ld. Counsel for plaintiffs have argued that the property is assessed in the name of Wakf Mandir in the records of MCD as is evident from documents Ex.PW1/1, PW1/2, PW1/3 and Ex.PW3/A. Mere assessment of the property in the name of Mandir for the purpose of income tax in the records of MCD is not a proof of the creation of a valid Trust or that the suit property is Trust property. Ld. Counsel for plaintiffs has also argued that Sh. Bishan Swarup issued rent receipts (Ex.DW1/P1) in the name of the Mandir. DW-1 was shown rent receipts Ex.DW1/P1 (colly) in her cross-examination and the Suit No. 596108/2016 Mandir Garh Mukteshwar Tonk Gaur Brahaman Trust Vs Smt. Rattan Kaur Page No.28/28 witness has deposed that she is not aware if the receipts, which were being issued to the tenants, were issued in the name of Mandir Garh Mukteshwar Tonk Gaur Brahaman. Ex.DW1/P1 (colly) reflects that the rent receipts were issued in the name of Mandir Garh Mukteshwar Tonk Gaur Brahaman. Though plaintiffs have not produced any independent witness to prove the rent receipts Ex.DW1/P1, however, if the same are taken to be true and gen- uine, yet the receipts do not mention that Mandir Garh Mukteshwar Tonk Gaur Brahaman is a Trust. Ex.DW1/P1 is not a prove of creation of Trust or that the suit property is a Trust property as Trust is created only when the pre-requisites of creation of a valid Trust are fulfilled as required under law, which plaintiffs have failed to prove. Plaintiffs have failed to prove as to how Ex.DW1/P1 proves the creation of a valid Trust or that suit property is a Trust property. Ld. Counsel for plaintiff has also argued that Sh. Bishan Swarup has written a letter dated 25.07.1959 to The Assessor and Collector MCD (document Ex.PW3/A) wherein Bishan Swarup has admitted that the suit property is a Trust property. At the sake of repetition, it is again reiter- ated that a Trust can be created only when all the pre-requisites of creation of a valid Trust are fulfilled as required under law. Without going into the genuineness or the proof of the document i.e document Ex.PW3/A, it is per- tinent to mention here that the document in question cannot be taken as a proof of the creation of a valid Trust as a mere statement of a third person (Sh. Bishan Swarup) is not a conclusive proof of the creation of a Trust. In order to succeed in their case, plaintiffs ought to have proved the creation of a valid Trust by Smt. Jamuna Devi, the admitted owner of the suit property, in the name of plaintiff no.1. Plaintiffs having failed to discharge the burden to prove the same, have failed to discharged the burden to prove the present issue.
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31.Before parting with the present issue, it is worth mentioning that Ld. Coun- sel for plaintiffs have brought the attention of the Court to the testimony of DW-1 in her cross-examination where DW-1 has admitted that she has can- not produce any document to prove that Smt. Jamuna Devi had executed a transfer deed in favour of Sh. Bishan Swarup through a registered document. The issue under consideration is whether a decree of declaration can be passed in favour of the plaintiffs declaring the suit property to the Trust property which cannot be sold, mortgaged or charged upon. It is no longer res integra that the plaintiff has to prove his own case and would have to stand on his own legs. Keeping in consideration the issue involved and prayer clauses of the present case, the fact that defendant no.1 is not able to justify her title to the suit property, does not entitle the plaintiffs to relief of declaration as prayed, as plaintiffs cannot succeed on strength of the weak- nesses of the case of the defendants.
32.Since plaintiffs have failed to prove that a valid Trust was created by Smt. Jamuna Devi and that the suit property is a Trust property, no declaration can be granted in favour of the plaintiffs to the effect that the suit property is a Trust property. Also, plaintiffs have failed to prove that the slab in question was got installed by Smt. Jamuna Devi, on the strength of which declaration is sought that the suit property cannot be sold, mortgaged or charged upon. Accordingly, plaintiffs are not entitled to a declaration that the suit property cannot be sold, mortgaged or charged upon
33.In view of the aforesaid discussion, the present issue is decided against the plaintiffs and in favour of the defendants.
Suit No. 596108/2016Mandir Garh Mukteshwar Tonk Gaur Brahaman Trust Vs Smt. Rattan Kaur Page No.28/28 Issue no.2 and 4 shall be taken up together:
ISSUE NO.2: Whether the present suit is barred by virtue of Section 41(h) and Section 41(j) of Specific Relief Act? OPD ISSUE NO.4: Whether the plaintiffs are entitled to the decree of permanent injunction, as prayed for? OPP
34.The burden to prove the present issue is cast on the defendant. Section 41(h) and Section 41 (j) of the Specific relief Act, 1963 reads as follows:
41. Injunction when refused.--An injunction cannot be granted:
(h) when equally efficacious relief can certainly be obtained by any other usual mode of proceeding except in case of breach of trust;
(j) when the plaintiff has no personal interest in the matter.
35.In their examination in chiefs, PW-2 and PW-4 have relied on Power of At- torney Ex. P3 executed by them in favour of Sh. Vinod Kumar. Both the plaintiffs have also admitted in their cross-examination that they have exe- cuted Power of Attorney in favour of Sh. Vinod Kumar. Sh. Vinod Sharma, Attorney Holder of the plaintiffs have given a statement before the Court on 17.01.2005 that the Trust is not having the possession of the property No. 398, Kucha Bulaki Begum, Dariba Kalan, Delhi i.e., the suit property. The statement of Sh. Vinod Sharma dated 17.01.2005 is part of judicial record. It is also not the case of the plaintiffs that they are in possession of the suit property.
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36.Since, plaintiffs are not admittedly in the possession of the suit property, no relief of permanent injunction can be granted in favour of the plaintiffs as the same is barred by Section 41(h) of the Specific Relief Act, 1963 as plain- tiffs have an equally efficacious remedy of seeking possession available with them. Also, relief of permanent injunction is also barred by Section 41(j) of Specific Relief Act as plaintiffs have failed to establish any personal interest in the suit property.
37.in light of the aforesaid discussion, issue no.2 is decided in favour of the de- fendant and against the plaintiffs and issue no.4 is decided against the plaintiffs and in favour of the defendant and it is held that the relief of per- manent injunction is barred by Section 41(h) and Section 41(j) of the Spe- cific Relief Act, 1963.
Relief:-
38. In view of the foregoing discussion and the findings on the aforesaid Issues, the present suit filed by the plaintiffs is dismissed.
No order as to cost.
Decree sheet be prepared accordingly.
File be consigned to record room after due completion of formalities.
Announced in the open Court (NEHA GARG)
on 7th March 2022 Civil Judge-01/Central,
Tis Hazari Courts/Delhi
Suit No. 596108/2016
Mandir Garh Mukteshwar Tonk Gaur Brahaman Trust Vs Smt. Rattan Kaur Page No.28/28