Delhi District Court
Bijender Sharma vs Smt. Vimla Devi on 29 July, 2016
In the Court of Dr. Rakesh Kumar: Additional District Judge
(South District) Saket Courts Complex, New Delhi.
CS No.: 5599/2016
CNR No. DLST01-000100-2014
In the matter of :-
Bijender Sharma
R/o House No. 146, Asola Housing
Complex, New Delhi. .......Plaintif
Versus
1. Smt. Vimla Devi
W/o Omkar
R/o 150/4, Lalit Park,
Laxmi Nagar, New Delhi
2. Rajinder Sharma
S/o Tek Chand Sharma
R/o House No. 30 Fateh Pur Beri
New Delhi
3. Devanand
S/o Roop Chand
R/o H.No. 3464, Islamabad Colony,
Palwal, Haryana
4. Sanuj Premee
S/o Satya Pal Singh
R/o 197, Ward no.- 2, Mehrauli,
New Delhi - 110030. .......Defendants
Date of institution : 08.07.2014
Reserved for order : 13.07.2016
Date of decision : 29.07.2016
ORDER
1. This order shall decide the application under Order VII Rule 11 of the Code of Civil Procedure, 1908 (hereinafter referred to as 'the CPC') read with Section 151 CPC made on behalf of the defendant no. 1 for dismissal of suit.
CS No. 5599/2016 Page No. 1 of 102. In the present application, it is stated that the present suit has been filed beyond the period of limitation as the plaintiff has filed a document which is only a photocopy of receipt/bayana and according to the said receipt the last date of execution of sale documents was 09.08.2007 and the present suit was filed in the year 2014. The document/receipt dated 09.08.2007 is a photocopy receipt and there is no other title document with the plaintiff. The suit is without any cause of action as the plaintiff has no title document nor he is in the possession of the suit property. The plaintiff is harassing the defendant no. 1 without any reason and he is intentionally and deliberately delaying the matter.
3. In reply, it is contended by the plaintiff that the defendant no. 1 has no concern with the suit property and also not in possession of suit property. The plaintiff had purchased the suit property from the defendant no. 4 after paying due sale consideration. The suit property was allotted to mother of the defendant no. 3 and after her death, the defendant no. 3 became absolute owner of the suit property who executed property documents in favour of the defendant no. 4 on 10.09.2001. After receiving due consideration, the defendant no. 4 had handed over the possession of the suit property to the plaintiff and the defendant no. 4 is not traceable.
4. I have heard counsel for the parties and perused the material available on record.
CS No. 5599/2016 Page No. 2 of 105. Learned counsel for the defendant submits that documents placed on record by the plaintiff are false and fabricated. It is further submitted that claims made in the plaint are barred by limitation. It is further submitted that the document i.e. a photocopy of receipt (page no. 32) on the basis of which the plaintiff is claiming to be owner of the suit property, was only a photocopy of a receipt/bayana. It is further submitted that the plaintiff has filed a complaint alongwith the suit (page 39) and according to the said complaint the last payment was made by the plaintiff on 20.11.2007, hence the present suit is not maintainable being time barred.
6. Per contra, the learned counsel for the plaintiff submitted that the defendant no. 1 has no concern with the suit property and also not in possession of the suit property.
7. I have given my thoughtful consideration to the submissions made on behalf of the parties.
8. By way of present application, the defendant is seeking rejection of plaint on the ground that this suit is barred by limitation, hence, this suit is barred by law under Clause (d) of Rule 11 of Order VII CPC.
9. It is settled law that for deciding an application under Order VII Rule 11 (a) and (d) CPC, the contents of the plaint only are to be seen and the contentions raised in the written CS No. 5599/2016 Page No. 3 of 10 statement are not relevant.
10. This is a suit for declaration and permanent injunction for declaring the plaintiff to be title owner of the suit property bearing no. 218 admeasuring 120 sq. yards in Khasra no. 1714, Asola Housing Complex, New Delhi and for restraining the defendants and their agents etc. from causing any interference and obstruction in the peaceful possession, use and occupation of the suit property and also from selling, mortgaging, dispossessing and creating third party interest in respect of the suit property.
11. Facts alleged in the plaint are that the suit property was allotted to Smt. Kela Devi in the year 1983-84 under 20 Program Scheme, who expired leaving behind her two sons namely Devanand and Anil Kumar. Devanand, being son of Late Kela Devi, sold the suit property to Sanuj Premi on 10.09.2001. The plaintiff had purchased the suit property from the defendant no. 4 Sanuj Premi and he is in physical possession there.
12. It is further stated that after receiving the sale consideration the plaintiff number of times requested to the defendant no. 4 to execute the requisite documents of the suit property but the defendant no. 4 on one pretext to another ignored the plaintiff and left the known premises and not traceable till today.
CS No. 5599/2016 Page No. 4 of 1013. It is further stated that when the plaintiff tried to construct on the suit property, the defendant no. 1 extended threat to dispossess the plaintiff from the suit property and claimed to be owner of the suit property.
14. From the plaint, it is quite clear that the plaintiff has, in the present suit, sought declaration of his ownership and based his claim merely on a Bayana receipt alleging that he has entered into an agreement to sell with the defendant no. 4 who issued a bayana receipt. It is also in the plaint (para no. 7) that the plaintiff had requested the defendant no. 4 to execute the requisite documents but he, on one pretext or the other, ignored the plaintiff.
15. In view of the above facts alleged in the plaint, I am of the clear view that the plaintiff should have sought the relief of specific performance of agreement and not the declaration of his ownership. But, the plaintiff has sought declaration of his ownership.
16. The relief of declaration is provided for under Section 34 of the Specific Relief Act, 1963 (hereinafter referred to as 'the Act'). This section reads as follows:-
Discretion of court as to declaration of status or rights- 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 tis 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.CS No. 5599/2016 Page No. 5 of 10
Explanation- A trustee of property is a "person interested to deny" a title adverse to the title of some one who is not in existence, and for whom, if in existence, he would be a trustee.
17. The scope of Section 34 of the Act for grant of declaration is that where any person is entitled to institute a suit against another denying, or interested to deny, his title to a right, the Court, in its discretion, is empowered to make a declaration that he is so entitled although the plaintiff has not asked for any other relief. A suit under this section cannot be maintained unless the plaintiff is a person entitled to some legal character or to some right as to property and the declaration sought is that he is entitled to such character or to such right. The section does not sanction every form of declaration but only a declaration that the plaintiff is entitled to specific legal character or right as to property.
18. As I have already observed, the plaintiff is seeking declaration for declaring him as title owner of the suit property and based his claim on the allegations that he has purchased the same.
19. Section 54 of Transfer of Property Act, 1882 (hereinafter referred to as 'the TP Act') defines Sale as transfer of ownership in exchange for a price paid or promised or part- paid and part-promised and provides for that such transfer, in the case of tangible immovable property of the value of one hundred rupees and upwards can be made only by a registered instrument. This section further provides for that a contract for the sale of immovable property is a contract that a sale of CS No. 5599/2016 Page No. 6 of 10 such property shall take place on terms settled between the parties and it does not, of itself, create any interest in or charge on such property.
20. It is noteworthy here that the plaintiff has not produced Sale Deed or any title document in respect of the suit property. So, the plaintiff cannot be declared as owner of the suit property.
21. Further, as per the averments of the plaint, the plaintiff had taken possession of the suit property from the defendant no. 4 at the time of execution of Bayana Receipt/Agreement dated 09.08.2007. As per the provisions of Section 17 (1-A) of the Registration Act,1908 read with Section 53-A of the TP Act, with effect from 24.09.2001, an Agreement to sell coupled with delivery of possession to the transferee must be registered. But, the plaintiff has not even produced registered Agreement to Sell.
22. Furthermore, there is another disturbing feature in the case set up by the plaintiff in the plaint, namely, as per the plaintiff's allegation, the original allottee Smt. Kela Devi had died leaving behind two sons and one of the sons, namely, Devanand (defendant no. 3) had sold the suit property to the defendant no. 4 who further sold the property to the plaintiff. When, as per the plaint itself, original allottee has died leaving behind two sons, the plaintiff has failed to explained how can one of the sons transfer whole of the suit property to the CS No. 5599/2016 Page No. 7 of 10 defendant no. 4 from whom he claims to have purchased the suit property.
23. It has been held by Hon'ble Supreme Court in T Arivandandam v. T. V. Satyapal 1977 Law Suit (SC) 307 as follows:
"The Court must exercise its powers to shoot down the bogus litigation at the earliest stage. If on a meaningful not formal reading of the plaint it is manifestly vexatious, and meritless, in the sense of not disclosing a clear right to sue, he should exercise his power under Order VII Rule 11 CPC taking care to see that the ground mentioned therein is fulfilled. And, if clever drafting has created the illusion of a cause of action, nip it in the bud at the first hearing."
24. In the light of law laid down in T Arivandandam's case (supra), from the formal reading of the plaint and perusal of documents annexed with the plaint, I am of the clear view that the plaintiff has no right to sue the defendants for seeking the relief of declaration of his title and this bogus litigation should be shoot down at this very stage.
25. Again, the defendant has also contended that the present suit has been filed beyond the period of limitation. It has been held in Sangita Rehan & ors v. Surinder Kishan Grover & ors 2015 (2) CCS 428 (Delhi) as follows :
"It is settled law that an issue of limitation is not always a mixed question of law and fact. Where a suit, from statement in the plaint, can be said to be barred by time, thus, a case for rejection under Order VII Rule 11 CPC is made out. The Supreme Court in N.V. Srinivasa Murthy v. Mariyamma, 2005 (2) Apex Court Judgments 01 (S.C.): 2005 (3) Civil Court Cases 302 (S.C.): 2005 (5) SCC 548 has held that if on a critical examination of the plaint, the suit seems to be clearly barred on the facts stated in the plaint itself, the plaint is liable to be rejected. In Hardesh Ores Pvt Ltd v. Hede & Company, 2007 (5) SCC 614, it was held that plaint can be rejected on the ground of limitation where the suit appears from CS No. 5599/2016 Page No. 8 of 10 the statement in the plaint to be barred by any "law" which includes the law of limitation. The Division Bench of this Court in Snowhite Apparels Ltd v. K.S.A Technopak (I) Ltd 2005 (121) DLT 351 also held that if reading of the averments in the plaint would admittedly establish that the suit is barred by any law which would include the Limitation Act also, the plaint would have to be rejected."
26. In the light of judgments discussed above, now, I proceed to examine the plaint if the suit seems to be clearly barred on the facts stated in the plaint itself.
27. As I have already observed that in the plaint (para no. 7), it is stated by the plaintiff that the plaintiff had requested the defendant no. 4 to execute the requisite documents but he, on one pretext or the other, ignored the plaintiff, in view of these allegations, the plaintiff should have been claimed relief of specific performance of contract. A perusal of Bayana Receipt/ Agreement relied upon by the plaintiff reveals that last date for performance of contract/execution and registration of sale document was 09.08.2007. This suit has, by way of clever drafting, been converted by the plaintiff from specific performance of contract to the relief of declaration of his title. In fact, the relief of specific performance of contract, in the present suit instituted on 08.07.2014, seems to be clearly barred by limitation.
28. Another relief claimed by the plaintiff is for perpetual injunction. Section 41(h) of the Act also says, "An injunction cannot be granted-when equally efficacious relief can certainly be obtained by any other usual mode of proceeding except in CS No. 5599/2016 Page No. 9 of 10 case of breach of trust." In the facts and circumstances of the present case, it has already been held that the plaintiff should have sought the relief of specific performance of agreement. It has also been held that relief of declaration sought by the plaintiff cannot be granted. In view of provisions of Section 41
(h) of the Act, equally efficacious reliefs available to the plaintiffs would have been the relief of specific performance of contract but the plaintiffs have failed to seek this relief, an injunction cannot be granted to the plaintiff.
29. For the discussion above-stated, therefore, I am of the clear view that the plaint is barred by law and, accordingly, the present application under Order VII Rule 11 CPC is allowed and the plaint is rejected.
Pronounced in the Open Court on 29.07.2016 (jl) (Dr. Rakesh Kumar) Additional District Judge South District: Saket Courts New Delhi CS No. 5599/2016 Page No. 10 of 10