Calcutta High Court (Appellete Side)
Gpt Healthcare Pvt. Ltd vs Soorajmull Nagarmull & Others on 19 June, 2018
Author: Sabyasachi Bhattacharyya
Bench: Sabyasachi Bhattacharyya
In the High Court at Calcutta
Civil Revisional Jurisdiction
Appellate Side
The Hon'ble Justice Sabyasachi Bhattacharyya
C.O. No. 622 of 2018
GPT Healthcare Pvt. Ltd.
vs.
Soorajmull Nagarmull & Others.
For the petitioner : Mr. S.P. Roy Chowdhury,
Mr. Aniruddha Chatterjee,
Mr. Srijib Chakraborty,
Ms. Urmila Chakraborty,
Mr. Souvik Das.
For the opposite
party no.1 : Mr. Haradhan Banerjee,
Mr. Subhrangshu Dutta,
Mr. Nilmoni Das.
Hearing concluded on : 08.06.2018
Judgment on : 19.06.2018
Sabyasachi Bhattacharyya, J.:-
The petitioner and opposite party No. 1 are represented by respective
learned counsel. In view of the proforma opposite party Nos. 2 to 5 not being
affected by the decision of this revisional application, service on the said
proforma opposite parties was deemed redundant.
The first defendant in a suit for declaration and consequential relief in
respect of an immovable property has filed the present revisional application.
By virtue of the impugned order, the petitioner's application for rejection of
plaint under Order VII Rule 11 of the Code of Civil Procedure was rejected on
contest. Although various grounds for rejection of plaint were taken by the
petitioner in the court below, learned Senior Advocate appearing for the
petitioner primarily restricts his submissions to two grounds:
i) The suit was time barred,
ii) The suit was barred under the proviso to Section 34 of the Specific
Relief Act, 1963,
both on the face of the plaint.
The suit in question was filed for the following reliefs:
A. A decree for declaration that the plaintiff has got right, title and interest
and ownership in respect of the property described in Schedule A
hereunder with a declaration that the defendant no. 1 has got no right,
title and interest in respect of the property described in Schedule 'A' & 'B'
hereunder on the footing of a registered deed of transfer dated 30.1.2016
and its mother deeds;
B. A decree for declaration that the mother deeds of the defendant no. 1 is
not binding upon the plaintiff with further declaration that the defendant
no. 1 has got no right, title and interest in the property and has got no
right to make any construction on the 'B' Schedule property belonged to
the plaintiff on the strength of any plan, if any, sanctioned in favour of
the defendant no. 1 with declaration that plaintiff's title to the "A" & "B"
Schedule property has not been affected by the purchase deed dated
20.01.2016 of defendant No. 1 and mother deeds;
C. A decree for a declaration that the defendant no. 1 has no right to
demolish the existing building and structure raised on the property and
no right to make any multistoried building on the said property described
in Schedule 'B' below;
D. Recovery of damages of Rs.1,51,000/- be passed against the defendant
no. 1;
E. A decree be passed declaring that the decree passed in TS no. 20 of 1998
by the court of Civil Judge, Junior Division, Howrah which was
registered in the registration office in between the parties thereto are not
binding upon the plaintiff with declaration that the title of the plaintiff to
the property described in Schedule 'A' and 'B' has not been affected in
any way by the series of transfer by deeds as referred to above including
the aforesaid decree thereof and plaintiff's title to the property described
in Schedule 'A' 'B' thereof still remains valid with declaration that the
plaintiff is entitled to take steps for eviction against the tenant separately
in accordance with law;
F. A decree of permanent injunction be passed restraining the defendant
no. 1 including its agents and employees from making any construction
and/or from changing the nature and character of the property described
in Schedule 'B' hereunder and not to transfer, encumber, and/or alienate
the property to any third party;
G. A decree for a permanent injunction be passed against the defendant
nos. 2 and 3 from mutating the name of the defendant no. 1 in the
municipal record and/or not to give any effect and/or further effect to
the mutation, if any, made and not to sanction any plan for raising
multistoried building on the property described in Schedule A & B
hereunder and/or not to give any effect and/or further effect to the plan,
if any, sanctioned by the Municipal Authority in respect of B Schedule
property also on the footing of the purported transferred deeds of the
defendant No. 1 and its mother deeds as referred to the pleading;
H. Costs of the suit;
I. Any other relief or reliefs the plaintiff is entitled to in law and equity.
Learned Senior Advocate appearing for the petitioner submits that, since
the primary relief sought by the plaintiff/opposite party No. 1 was a declaration
that a registered deed of transfer dated January 30, 2016 and its "mother
deeds", ranging back at least to September 10, 1986, were not binding on the
plaintiff/opposite party No. 1, the suit is governed by Article 58 of the
Limitation Act. The said Article fixes the starting point of limitation to the date
when right to sue first accrued. In view of Section 3 of the Transfer of Property
Act, registration of a deed is sufficient notice of a transaction effected by the
deed. As such, for the purpose of seeking declaration that a particular deed is
not binding on a person, it is the date of registration of the deed when the right
to sue first accrued, in view of all persons being deemed to have notice of the
transaction by virtue of such registration.
It is also submitted that the plaintiff/opposite party No. 1, by filing the
suit, sought to upset several registered transfer deeds, executed over decades,
in the garb of challenging a recent deed of January 30, 2016. Hence, the plaint
is a product of clever drafting and ought to be nipped in the bud.
It is also submitted that Article 59 of the Limitation Act does not apply to
the present case since the suit was not for cancellation of or setting aside an
instrument, but for a declaration that the deeds in question are not binding.
Learned Senior Advocate for the petitioner next argues that the proviso to
Section 34 of the Specific Relief Act, 1963 bars a declaratory suit where the
plaintiff, being able to seek further relief than a mere declaration of title, omits
to do so. In the present case, it is argued, it is evident from several portions of
the plaint pleadings, that the defendant No. 1/petitioner, and not the
plaintiff/opposite party No.1, is in possession of the suit property. Despite such
admission, the plaintiff/opposite party No. 1 omitted to seek the relief of
recovery of possession within the four corners of the plaint. In fact, learned
Advocate for the plaintiff in the court below boldly submitted that the plaintiff
need not pray for further relief of recovery of possession, as recorded in the
impugned order itself. Accordingly, the suit is barred by the proviso to Section
34 of the Specific Relief Act and the connected plaint ought to be rejected,
according to the petitioner.
The following paragraphs of the plaint are placed on behalf of the
petitioner to bolster the submission that the plaintiff/opposite party No. 1
admitted the possession of the petitioner in respect of the suit property:
Paragraph No. 14 of the plaint - Defendant No. 1/petitioner allegedly making
preparation for constructing multistoried building.
Paragraph No. 19 of the plaint - M/s Bikhan Construction Pvt. Ltd. (vendor
of defendant No. 1) got a decree for recovery of possession against one
Ratnakar Pandey and others.
Paragraph No. 21 of the plaint - That the defendant No. 1 was an unlawful
occupier in respect of the suit property.
It is submitted on behalf of the petitioner, on the basis of the aforesaid
pleadings, that the possession of the petitioner in respect of the suit property
was squarely admitted by the opposite party No. 1 and as such the suit is
barred by law for not claiming the relief of recovery of possession.
A further ancillary point was touched by the learned Senior Advocate for
the petitioner in concluding his arguments; that the vendors of all the previous
deeds sought to be challenged had also not been made parties to the suit.
Therefore, the suit could be said to be barred for non joinder of necessary
parties.
Learned Senior Advocate appearing for the opposite party No. 1,
contradicting the submissions made on behalf of the petitioner, submits that
not a single averment within the four corners of the plaint disclosed any
previous knowledge of the plaintiff/opposite party No. 1 as to the execution of
the deeds which preceded the transfer deed dated January 30, 2016. The first
knowledge of such transactions could only be attributed to the plaintiff after
the plaintiff/opposite party No. 1 obtained certified copies of relevant deeds on
December 26, 2016 (paragraph Nos. 13 and 14 of the plaint). As such on a
meaningful reading of the plaint, there was no scope for coming to the
conclusion that the suit was barred by limitation.
As to imputed knowledge under Section 3 of the Transfer of Property Act,
it is argued that only the actual date of knowledge would be relevant for the
purpose of Article 58 of the Limitation Act which would be applicable to the
present case. Execution and registration of the deeds would not amount to
knowledge, for the purpose of starting limitation as envisaged in Article 58 of
the Limitation Act. As such, the suit could not be found to be barred by
limitation on the face of the plaint.
Regarding the proviso to Section 34 of the Specific Relief Act, learned
Senior Advocate appearing for the plaintiff argues that the plaintiff pleaded
constructive possession through his tenant Khirod Chandra Ghosh. It has been
categorically pleaded in the plaint that the Ghoshes were tenants under the
plaintiff but transferred title (though they themselves were only tenants) to the
predecessor-in-interest of the defendant No. 1. Such transfer at best amounted
to illegal sub-letting. As such, constructive possession of the suit property
ultimately remained with the plaintiff. Learned Senior Advocate appearing for
the opposite party No. 1 particularly relied on the averments made in
paragraph Nos. 8 to 9 of the plaint to support his contention that the plaintiff
No. 1 claimed to be in constructive possession of the suit property through the
tenant Khirod Chandra Ghosh and thereafter through heirs of the said tenant.
Lastly, it was argued on behalf of the opposite party No. 1 that the
plaintiff/opposite party No. 1 could not, in any event, file an eviction suit
directly against the sub-tenant and so non-inclusion of recovery of possession
in the reliefs sought was not fatal to the suit.
The judgments cited by the parties respectively are as follows:
For the petitioner:
Sl No. Reference Proposition
1.(1973) 2 Supreme Court Cases 60 Section - 34 of the Ram Saran and Another Specific Relief Act Versus Smt. Ganga Devi
2. 1993 Supp (3) Supreme Court Cases Section - 34 of the 129 Specific Relief Act Vinay Krishna Versus Keshav Chandra And Another
3. AIR 1942 Cal 245 Section - 34 of the Anilabala Debi Specific Relief Act Versus MadhabenduNarain Roy
4. (2008) 3 CHN 639 Deed challenged as void Hamida Begum alias AloBibi - still to be challenged Versus within the period of UmranBibi and Others limitation
5. AIR 77 Cal 189 Limitation Kanailal Das And Another Versus Jiban Kanai Das And Another
6. (2000) 7 SCC 702 Registered Deeds are Dilboo (Smt.) (Dead) And Others public document hence Versus date of registration is the Dhanraji (Smt.) (Dead) And Others date of deemed knowledge
7. (1977) 4 SCC 467 Clever T. Arivandandam Drafting/Camouflage Versus Drafting T.V. Satyapal And Another
8. (2005) 5 Supreme Court Cases 548 Clever N.V. Srinivasa Murthy And Others Drafting/Camouflage Versus Drafting Mariyamma (Dead) by Proposed LRS And Others For the opposite party No. 1:
S/ Reference Proposition l
1. AIR 1960 SC 335 Opportunity of amendment to be given to plaintiff before dismissing suit.
2. AIR 1966 SC 359 Where the defendant not in possession and not in a position to deliver possession to the plaintiff, plaintiff in a suit for declaration of title need not
3. 2006 (5) SCC 658 Question of limitation is a mixed question of law and fact and to be decided on contest in suit - on ex facie reading of plaint suit cannot be held to
4. 2010(2) CHN (SC) 156 Stranger to deed can file suit for Suhrid Singh @ declaration that deed is not binding.
Sardool Singh vs. Randhir Singh &Ors.
5. FA 274 of 2014 Article 58, Limitation Act applicable [Banamali Das (since when deed sought to be declared deceased) vs. Salma voidable.
Khatun and others] (unreported) Upon hearing both sides and consideration of the materials on record, it is seen that undoubtedly the plaintiff/opposite party No. 1 has admitted categorically possession of the defendant No. 1 in respect of the suit property. In the paragraphs of the plaint referred to by the petitioner, that is, paragraph nos. 14, 19 and 21, the plaintiff has not minced words to express in clear terms that defendant No. 1 has been in possession of the suit property. In paragraph No. 14 the partner of the plaintiff company was alleged to have seen the defendant No. 1 making preparation for constructing multistoried building on the suit property. In paragraph No. 19 of the plaint, the plaintiff admits that the vendor of the defendant No. 1 /petitioner (M/s Bikhan Construction Pvt. Ltd.) had obtained a decree for recovery of possession against a stranger in respect of the suit property, although it was pleaded that the present plaintiff was not bound by the said decree. Again in paragraph No. 21 of the plaint, the defendant No. 1/ petitioner was described as an unlawful occupier, claiming through Khirod Chandra Ghosh, in respect of the suit property.
Despite having admitted possession of the defendant No. 1/petitioner, no prayer was made by the opposite party no. 1 for amendment of the plaint to incorporate the relief of recovery of possession. It is undoubtedly true that in all the cited judgments, where it was held that not praying the relief of recovery of possession would attract the bar stipulated in Section 42 (now Section 34) of the Specific Relief Act, the matters arose from final decisions in suit. The opposite party no. 1 could have a point in that in the present case the suit has not yet reached the hearing stage and there could still be opportunity for the plaintiff/opposite party no. 1 to amend the plaint to incorporate the relief of recovery of possession. As such, it could be argued that the bar envisaged in the proviso to Section 34 of the Specific Relief Act was being prematurely invoked. However, in the present case, learned Advocate appearing for the plaintiff/opposite party No. 1 categorically submitted in the court below that the plaintiff need not pray for further relief of recovery of possession since the plaintiff is already in "constructive possession of the suit premises". Arguments advanced by the opposite party No. 1 in this Court were also of the same tenor. Moreover, sufficient opportunity was available to the plaintiff/opposite party No. 1 even after the application under Order VII Rule 11 of the Code was filed, to rectify the defect by amending the plaint to incorporate the relief of recovery of possession. However, the plaintiff/opposite party No. 1 chose not to adopt such recourse and went merrily without incorporating the prayer of recovery of possession.
In this context, the relevant Section and proviso may be referred to:
"Section 34. Discretion of court as to declaration of status or right - Any person entitled to any legal character, or to any right as to any property, may institute a suit against any person denying, or interested to deny, his title to such character or right, and the court may in its discretion make therein a declaration that he is so entitled, and the plaintiff need not in such suit ask for any further relief:
Provided that no court shall make any such declaration where the plaintiff, being able to seek further relief than a mere declaration of title, omits to do so. Explanation. - A trustee of property is a "person interested to deny" a title adverse to the title of someone who is not in existence, and whom, if in existence, he would be a trustee. "
It is evident in the present case that the possession of the defendant No. 1/petitioner in respect of the suit property was admitted all along by the plaintiff. The argument that the plaintiff was in constructive possession has no legs to stand upon in the teeth of the admission that the defendant No. 1/petitioner is an unlawful occupier. In fact, since the alleged transfer by Khirod Chandra Ghosh and/or his heirs in favour of the predecessor-in- interest of the petitioner did not confer legitimate title on the said predecessor- in-interest, as per the plaint case, the plaintiff could not turn around and claim possession through such allegedly unlawful and unauthorized occupant. The moment it is admitted by the plaintiff that the defendant No.1/petitioner had not come into occupation by the authority of the plaintiff, the claim of the plaintiff being in constructive possession through defendant No. 1 was rendered farcical and a contradiction in terms.
Hence, as consistently held by the Hon'ble Supreme Court and this Court, as exemplified in the first three judgments cited by the petitioner, the suit has to be held time barred on the face of the plaint.
As to opportunity for filing amendment application to introduce the prayer of recovery of possession, such argument does not lie any longer in the mouth of the opposite party No. 1, since the basis of the argument advanced by the opposite party no. 1 both in the court below and in this Court was that the plaintiff is in constructive possession of the premises and need not pray for recovery of possession. Upon such argument being held to be erroneous and illusory, there could not arise any de novo opportunity to be given to the plaintiff to amend the plaint. As such, the plaint in Title Suit No. 107 of 2017 has to be held to be barred under the proviso to Section 34 of the Specific Relief Act, 1963.
On the question of limitation, a consideration of Articles 58 and 59 of the Limitation Act, 1963 is necessary.
Description of the suit Period of Time from which period
limitation begins to run
58. To obtain any other Three years. When the right to sue first
declaration accrues.
59. To cancel or set aside Three years. When the facts entitling the
an instrument or decree plaintiff to have the instrument or
or for rescission of a decree cancelled or set aside or
contract. the contract rescinded first
become known to him.
The starting point of limitation begins to run in case of Article 59 from the date of knowledge. On the contrary, in case of Article 58, starting point of limitation is when the right to sue first accrues. It is noteworthy that in case of Article 58, knowledge has not been made a yardstick. It can reasonably be deduced that when a person challenges the binding effect of a deed, the date of registration (when the deed legally comes into force) has to be the date when the right to sue first accrues. In the event the primary declaration sought was that of title, without reference to any deed, the date when such title was challenged openly within the knowledge of the plaintiff, could have been a relevant factor. However, when a deed is executed by an alleged stranger to the property affecting the title of the actual owner, the right to sue of the real owner accrues immediately. As such, in cases where the execution of the deeds itself is under challenge the starting point of limitation has to be fixed on the date of registration of the transfer deed.
In the present case, declaration of title was only consequential upon the declaration as to the deeds being not binding. Hence, the date of registration of the previous transfer deeds, all of which have been challenged, had to be taken as the starting point of limitation. Since the challenge of the plaintiff would fail in the event even one of the transfer deeds, starting from September 10, 1986,withstood scrutiny by the Court, the suit has to be held time barred on the face of the plaint. Unless the first deed dated September 10, 1986 could be set aside on a prayer of the plaintiff, the following deeds would remain unscathed, rendering the entire suit infructuous.
Even if knowledge was the starting point of limitation, Section 3 of the Transfer of Property Act would fix notice of the transactions in question on the plaintiff since the date of registration of the said deeds. As possession in favour of defendant No 1 and its predecessors pursuant to such deeds has also been virtually admitted by the plaintiff, the second component of notice under Section 3 of the Transfer of Property Act, that is possession, is also specified. Hence, the suit has to be held as time barred both from the point of view of knowledge as well as first accrual of the right to sue. The judgment cited on the point of limitation on behalf of the petitioner also supports the aforestated proposition.
Clever drafting, in the present case, is evident from the way the plaintiff sought to couch the prayer for cancellation of the earlier deeds. An effort was made carefully in the plaint to hit the "mother deeds", that is, the previous title deeds, by throwing a challenge to the latest of the deeds, dated January 30, 2016, since such latest deed fell within the limitation period for challenge.
Even as regards recovery of possession, the plaintiff has made a blatant effort to obviate the trouble of seeking recovery of possession after so many years by describing the possession of defendant No. 1 as "constructive possession" of the plaintiff / opposite party No. 1. Merely by such clever drafting opposite party No. 1 sought to bypass the rigour of law. Such an attempt ought to be nipped in the bud, as rightly pointed out by the petitioner and supported by the judgments cited on behalf of the petitioner in that regard, as indicated in the chart of decisions above. Taking into consideration the judgments cited by the opposite party No. 1, it is seen that the decision reported at AIR 1960 SC 335 is not strictly applicable to the present case since, although generally an opportunity might be given to the plaintiff to amend the plant prior to rejecting the suit on a technical ground, in the present case the plaintiff chose not to amend the plaint but to reiterate its stand of such an amendment, incorporating the relief of recovery of possession, being not necessary at all. In view of such stand, the plaintiff/opposite party No. 1 took the risk of proceeding without an amendment and, in view of exercise of such option by the opposite party No. 1, there cannot now arise any question of forcing such an amendment on opposite party No. 1 at this belated juncture.
Coming to the judgment reported at AIR 1966 SC 359, the facts of the said decision are entirely different from the present one. Here, the question of attachment does not arise and, in view of the aforesaid discussions, it cannot be said that the declaratory suit would otherwise be maintainable without seeking recovery of possession. As such, the said decision is of no help to the opposite party No. 1.
Lastly, the decision reported at 2006 (5) SCC 658, is also not of any help to the proposition advanced by the opposite party No. 1. There cannot be any dispute to the proposition that, in some circumstances, the question of limitation can be a mixed question of law and fact. However, in the present case, the averments in the plaint itself make it abundantly clear that the challenge to the previous deeds was barred by limitation. Since the suit would not be maintainable otherwise than by challenging those previous deeds, the plaintiff, in any event, could not avoid challenging such deeds. Since a challenge to those deeds is palpably barred by limitation, as is evident from the face of the plaint, the suit has to be held as time barred and that to, on the averment made in the plaint itself.
In the light of the aforesaid discussions, there is no other option but the plaint of Title Suit No. 107 of 2017, pending in the Second Court of Civil Judge (Senior Division) at Howrah, to be rejected.
Accordingly, C.O. No. 622 of 2018 is allowed on contest, thereby setting aside the order dated February 9, 2018 passed by the Civil Judge (Senior Division), Second Court at Howrah in Title Suit No. 107 of 2017, whereby the prayer for rejection of plaint was refused. The application filed by the petitioner in the court below under Order VII Rule 11 of the Code of Civil Procedure is hereby allowed and the plaint filed in Title Suit No. 107 of 2017, pending in the Second Court of Civil Judge (Senior Division) at Howarh is hereby rejected.
There will be no order as to costs.
(Sabyasachi Bhattacharyya, J.)