Delhi District Court
Rajat Bali vs V. K. Jaitley on 20 March, 2024
IN THE COURT OF SUDHANSHU KAUSHIK :
ADDITIONAL SESSIONS JUDGE-06 : NEW DELHI DISTRICT :
PATIALA HOUSE COURTS : NEW DELHI
CIVIL SUIT NO.57434/2016
CNR NO.: DLND01-001608-2016
IN THE MATTER OF :-
RAJAT BALI
S/O LATE J.K.BALI
R/O A-91/3, SFS, SAKET,
NEW DELHI
.....PLAINTIFF
VERSUS
1. V.K.JETLY (NOW DECEASED)
THROUGH LEGAL REPRESENTATIVES:
1A. MS. NANCY JETLY
W/O LATE V.K.JETLY
R/O 1/3, SHANTI NIKETAN,
NEW DELHI-110021
1B. MS. RAJSHREE JETLY
D/O LATE V.K.JETLY
R/O 1/3, SHANTI NIKETAN,
NEW DELHI-110021
1C. MS. APARNA JETLY
D/O LATE V.K.JETLY
R/O 1/3, SHANTI NIKETAN,
NEW DELHI-110021
2. MS. SHASHI SHOREY (NOW DECEASED)
THROUGH LEGAL REPRESENTATIVES:
2A. MS. NEERA PUNJ
W/O ALOK PUNJ
R/O 1, LOTUS COURT, J.TATA ROAD,
CS No.57434/2016 Rajat Bali Vs V.K.Jetly & Ors. Page 1 of 38
CHURCHGATE, MUMBAI-400020
MAHARASHTRA
2B. DR. RAJEEV SHOREY
S/O LATE COL. IQBAL KISHORE SHOREY
R/O APARTMENT NO.W-82, REGENCY PARK-2,
DLF PHASE-4, GURUGRAM-122002
HARYANA
2C. MS. REKHA SHOREY
W/O LATE COL. ANIL SHOREY
R/O APARTMENT NO.P-3094, DEVINDER VIHAR,
SECTOR-56, GURUGRAM-122001
HARYANA
2D. GAURAV SHOREY
S/O LATE COL. ANIL SHOREY
R/O E-156, THIRD FLOOR, GREATER KAILASH-II,
NEW DELHI-110048
2E. MADHAV SHOREY
S/O LATE COL. ANIL SHOREY
R/O APARTMENT NO.P-3094, DEVINDER VIHAR,
SECTOR-56, GURUGRAM-122001
HARYANA
3. MRS. PREMA BHANOT
W/O LATE G.K.BHANOT
R/O A-8, VIJAY PATH, TILAK NAGAR,
JAIPUR, RAJASTHAN
4. MRS. USHA NORMAN
W/O LATE DAVID A.NORMAN
R/O 1200, SOUTH PROSPECT AVENUE,
UNIT NO.107, ELMHURST, IL 60126
USA
5. J.K.BALI (NOW DECEASED)
THROUGH LEGAL REPRESENTATIVES:
(PLAINTIFF AND DEFENDANTS NO.6)
S/O LATE D.N.BALI
R/O A-91/3, SFS, SAKET,
NEW DELHI-110017
CS No.57434/2016 Rajat Bali Vs V.K.Jetly & Ors. Page 2 of 38
6. SAMIR BALI
S/O LATE J.K.BALI
R/O 31, CHERRYSONS, ST. CYRIL ROAD,
NEAR ST. ANDREWS SCHOOL,
BANDRA (W), MUMBAI-400050
MAHARASHTRA
7. M/S GOVERNMENT SERVANTS CO-OPERATIVE
HOUSE BUILDING SOCIETY LTD.
HAVING ITS OFFICE AT:
PASHCHIMI MARG, VASANT VIHAR,
NEW DELHI
8. MRS. ABHA CHHABRA
(ERSTWHILE PLAINTIFF NO.1)
W/O D.K.CHHABRA
R/O 937, SW-112, TERRACE PEMBROKE PINES,
FL.33025, USA
.....DEFENDANTS
DATE OF INSTITUTION : 24.09.1998
DATE OF PRONOUNCEMENT OF ORDER : 20.03.2024
JUDGMENT
1. By means of the present suit, plaintiff Rajat Bali has sought declaration, partition, possession, recovery of mesne profits and rendition of accounts of property measuring 1492 square yards bearing No.1/3, Shanti Niketan, New Delhi (hereinafter referred to as 'the property') claiming that it is the property of his maternal grandfather late B.B.S.Jetly, who died intestate.
Pleadings and the brief background
2. The suit was initially instituted by Abha Chhabra (plaintiff No.1) and CS No.57434/2016 Rajat Bali Vs V.K.Jetly & Ors. Page 3 of 38 Rajat Bali (plaintiff No.2). Plaintiff No.1 was transposed as defendant No.8 and thereafter, plaintiff No.2/Rajat Bali became the sole plaintiff. Defendant No.1/Late V.K.Jetly was the son of Late B.B.S.Jetly.
3. The brief facts contained in the plaint are ;
(a) Late B.B.S.Jetly was an officer of Indian Police Service. He became a member of Government Servant Cooperative Housing Building Society (defendant No.7) and by virtue of this membership, he was allotted a plot of land bearing No.1/3, Shanti Path Extension, New Delhi (now known as Shanti Niketan Colony) measuring 1492 square yards. He constructed a residential house over the allotted plot and his eldest son defendant No.1/V.K.Jetly started residing therein along with his family.
(b) It was disclosed that late B.B.S.Jetly and his wife Late Shanti Jetly were Hindus by birth and both were governed by Hindu Law. They had two sons and five daughters; out of two sons, the younger son Pramod Kumar Jetly did not marry and he predeceased his parents; Both B.B.S.Jetly and his wife died intestate and consequently, their estates devolved upon their legal heirs in the manner prescribed under the Hindu Succession Act, 1956.
(c) Defendant No.2/Shashi Shorey, defendant No.3/Prema Bhanot, defendant No.4/Usha Norman and defendant No.8/Abha Chhabra are stated to be the daughters of late B.B.S.Jetly. Defendant No.5/J.K.Bali is the father of the plaintiff. He died during the pendency of the suit. CS No.57434/2016 Rajat Bali Vs V.K.Jetly & Ors. Page 4 of 38 Late Asha Bali, mother of the plaintiff, died before the institution of the suit. Defendant No.6/Samir Bali is the brother of the plaintiff while Defendant No.7 is the Government Servant Cooperative Housing Building Society Limited (hereinafter referred to as 'the society').
(d) Plaintiff filed the initial suit claiming that the suit property was allotted to his maternal grandfather as a member of the society. He mentioned that his material grandparents died intestate and he became entitled to 1/6th share in the property. Defendant No.1 filed written statement disclosing that he is the exclusive owner of the property. He claimed that he became member of the society and the the plot of land was allotted to him by virtue of a perpetual sub-lease dated 20.11.1967. On gaining this information, plaintiff sought amendment of plaint and incorporated an additional relief of declaration to the effect that the perpetual sub-lease may be declared null & void. He also sought a declaration that the plot of land was allotted to B.B.S.Jaitely and nobody else. The amendment was allowed by the High Court of Delhi vide order dated 20.09.2005 and the amended plaint was taken on record.
4. Defendant No.1 died during the pendency of the suit and his legal representatives were brought on record as defendant No.1A to defendant No.1C. They filed the written statement to the amended plaint and reiterated the stand of defendant No.1. They claimed that the CS No.57434/2016 Rajat Bali Vs V.K.Jetly & Ors. Page 5 of 38 perpetual sub-lease was duly registered at the office of concerned Sub- Registrar and plaintiff is deemed to have noticed of the said registration. They contended that relief sought by the plaintiff has become time barred. They mentioned that the suit for partition is not maintainable as the suit property stands in his name of V.K.Jetly and not in the name of his father. They claimed that although, the allotment was initially made in favour of B.B.S.Jetly but it was subsequently transferred in the name of defendant No.1. They mentioned that on the written request of B.B.S.Jetly, the membership of the society was transferred to V.K.Jetly in accordance with the bye-laws of the society. They claimed that all the requisite formalities were complied with for transferring the property in the name of V.K.Jetly. They mentioned that V.K.Jetly raised construction over the suit property in the year 1971 from his own funds. They disclosed that V.K.Jetly also took loan from Life Insurance Corporation of India (LIC) for raising the construction over the suit property and executed a mortgaged deed dated 17.08.1971. The mentioned that V.K.Jetly cleared the loan and the said fact was acknowledged by LIC in the registered deed of redemption dated 14.10.1989. They took the plea of adverse possession claiming that they are in continuous & uninterrupted possession of the property for last more than 30 years.
5. Defendant No.2, 3, 4 & 8 took identical stand and supported the CS No.57434/2016 Rajat Bali Vs V.K.Jetly & Ors. Page 6 of 38 version of defendant No.1A to 1C. They mentioned that V.K.Jetly was the owner of the suit property and they are not claiming any share in the property. Defendant No.4 stated that her father transferred the lease deed of the land in favour of defendant No.1 in order to protect it from law suit. Although, she stated in the written statement to the original plaint that she is not claiming any share in the property but she changed her stand in the amended written statement. She claimed in the amended written statement that she is entitled to 1/6 th share in the suit property.
6. Defendant No.7/Society supported the line of defence taken by defendant No.1A to 1C. It disclosed that the suit property was initially earmarked for being allotted to B.B.S.Jetly. It mentioned that it received a written request dated 05.10.1967 from B.B.S.Jetly that his son may be enrolled in his place as a member of the society for the purpose of registration of the property. It disclosed that V.K.Jetly submitted an admission form and he was admitted as a member of the society on 06.10.1967. It disclosed that V.K.Jetly executed an affidavit in the prescribed form which was duly certified by the Secretary of the society. It mentioned that no objection certificate dated 26.10.1967 was received from the Secretary (Land & Building, Land Administration) to transfer the suit property in favour of V.K.Jetly subject to certain conditions which were duly fulfilled. It claimed that the perpetual sub- CS No.57434/2016 Rajat Bali Vs V.K.Jetly & Ors. Page 7 of 38 lease was duly executed in favour of V.K.Jetly and his father B.B.S.Jetly signed the same as attorney of his son.
7. Plaintiff filed replication and reiterated the contents of the plaint.
ISSUES
8. The following issues were framed by the High Court of Delhi vide order dated 14.03.2007:-
1) Whether Mr. B.B.S.Jetly was the sole owner of the suit property bearing No.1/3, Shanti Niketan, New Delhi and on his demise it devolved equally on all his legal heirs? OPP
2) Whether Mr. V.K.Jetly (defendant No.1) ever acquired title to the suit property bearing No.1/3, Shanti Niketan, New Delhi during the lifetime of Mrs. B.B.S.Jetly? OPD
3) Whether perpetual sub-lease deed dated 20.11.1967 was obtained by fraud/forgery or is otherwise illegal? OPP
4) Whether the legal heirs/successors of Mr. B.B.S.Jetly are entitled to any mesne profit/damages? OPP
5) Whether Mr. V.K.Jetly can claim right to the suit property by adverse possession? OPD
6) Whether the suit is barred by limitation? OPD
7) Whether plaintiff is entitled to a decree of partition as prayed? OPP
8) Whether the plaintiff is entitled to the costs of the suit?
9) Whether the plaintiff is entitled to relief as prayed for in the suit? OPP CS No.57434/2016 Rajat Bali Vs V.K.Jetly & Ors. Page 8 of 38 ADDITIONAL ISSUES
1. Whether the present case would be governed by the Hindu Successions Amendment Act, 2005 or by the Hindu Succession Act as operating at the time of the filing of the suit?
It was observed that in the event of aforesaid issue is decided in favour of the plaintiff, the following further issues would arise:-
1. Whether the plaintiff's suit is barred by Section 23 of the Hindu Succession Act? OPD
2. Whether the Section 23 of the Hindu Succession Act is ultra vires the Constitution of India ? OPP Evidence
9. Plaintiff examined only one witness i.e. himself as PW-1. He filed his evidence by way of affidavit (Ex.PW-1/A) and placed reliance on the following documents;
(a) Letter dated 10.10.1967 filed by defendant No.7/Government Servants Co-operative Housing Society as Ex.PW-1/1;
(b) Letter dated 26.10.1967 of Delhi Administration whereby defendant No.1/V.K.Jetly was called upon to fulfill the requisite conditions for the membership and allotment of residential plot as Ex.PW-1/2;
(c) Copy of the By-Laws of defendant No.7/Government Servants Co-operative Housing Society as Ex.PW-1/3;
CS No.57434/2016 Rajat Bali Vs V.K.Jetly & Ors. Page 9 of 38
(d) Copy of the letter bearing reference no. A/B-2134 addressed by late B.B.S.Jetly to defendant No.7/Government Servants Co-operative Housing Society as Ex.PW-1/4;
(e) Letter dated 03.10.1969 written by Honorary Secretary of defendant No.7/Government Servants Co-operative Housing Society to the Engineering Supervisor requesting him to give water connection to late B.B.S.Jetly as Ex.PW-1/5; and
(f) Letter dated 11.12.1970 written by late B.B.S.Jetly to the Honorary Secretary of defendant No.7/Government Servants Co- operative Housing Society requesting for another copy of the perpetual sub-lease deed executed by him as well as the refund of extra money charged by the Society as Ex.PW-1/6.
10. On the other hand, defendant No.1 examined seven witnesses. D1W1 Nancy Jetly, wife of defendant No.1, filed her evidence by way of affidavit and placed reliance on the following documents;
(a) By-Laws of the Society as Ex.D1W1/1;
(b) Letter dated 05.10.1967 written by late B.B.S.Jetly to the
Society for registering the lease deed of the property in the name of defendant No.1 as Ex.D1W1/2;
(c) Admission Form dated 06.10.1967 submitted by defendant No.1 for becoming the Member of the Society as Ex.D1W1/3;
(d) Affidavit dated 06.10.1967 submitted by defendant No.1 that CS No.57434/2016 Rajat Bali Vs V.K.Jetly & Ors. Page 10 of 38 neither he nor any dependent member of his family owns any plot of land in New Delhi as Ex.D1W1/4;
(e) Letter dated 10.10.1967 issued by the Society that it has no objection for admitting defendant No.1 as a member of the Society in place of his father late B.B.S.Jetly as Ex.D1W1/5;
(f) The approval dated 26.10.1967 given by the Delhi Administration (Land and Building Department) for the enrollment of defendant No.1 as a Member of the Society as Ex.D1W1/6;
(g) The noting dated 20.11.1967 of Land and Building Department approving the execution of perpetual sub-lease deed in favour of defendant No.1 as Ex.D1W1/7;
(h) Certified copy of perpetual sub-lease deed dated 20.11.1967 in favour of defendant No.1 as Ex.D1W1/8;
(i) True copy of Power of Attorney as Ex.D1W1/9;
(j) The Mortgage Deed dated 17.08.1971 on the basis of which
defendant No.1 obtained loan from Life Insurance Corporation of India (LIC) as Ex.D1W1/10; and
(k) Redemption Deed dated 14.10.1989 as Ex.D1W1/11.
11. D1W2 Deepak Mandal, Manager of defendant No.7/Government Servant Co-operative Housing Society, produced the true copy of the by-laws of the Society. He mentioned that he cannot say if defendant No.1 submitted the affidavit dated 06.10.1967 with the Society as the CS No.57434/2016 Rajat Bali Vs V.K.Jetly & Ors. Page 11 of 38 same was not traceable in the records of the Society. He produced the original letters dated 05.10.1967, 10.10.1967 and 26.10.1967 as well as the admission form dated 06.10.1967.
12. D1W3 Sunil Kumar, LDC, Land and Building Department, mentioned that the file of the suit property was transferred to Delhi Development Authority vide letter dated 19.09.1983. Copy of the letter is Ex.D1W3/1.
13. D1W4 Madhu Sudan, Sr. Secretariat Assistant, Co-operative Society Branch, Delhi Development Authority, Vikas Sadan, produced the original record of the suit property. The true typed copy of the Power of Attorney was found in the said record. He also produced the noting dated 20.11.1967 whereby approval was made for the execution of perpetual lease deed in favour of defendant No.1. Copy of the same is Ex.D1W4/1.
14. D1W5, Naveen, Record Keeper, Department of Delhi Archives, produced the perpetual sub-lease dated 20.11.1967 as well as the mortgage deed dated 17.08.1971. It was found that both the documents were registered at the office of concerned Sub-Registrar. The registered perpetual lease deed is Ex.D1W5/1 and the registered mortgage deed is Ex.D1W5/2.
15. D1W6, Arun Kumar, Official from the LIC, produced the redemption deed.
CS No.57434/2016 Rajat Bali Vs V.K.Jetly & Ors. Page 12 of 38
16. D1W7, Ishwar Lal Saw, Assistant-cum-Cashier of Society, produced the list of Members of the Society as on 01.04.1962 as Ex.D1W7/1. The admission forms of 26 Members of the Society are Ex.D1W7/2 (colly).
Final Arguments
17. Final arguments were heard.
Arguments on behalf of Plaintiff
18. Counsel for the plaintiff argued that plaintiff has a legal right to claim partition of the suit property. He mentioned that the society allotted the plot of land to the maternal grandfather of the plaintiff and he became the absolute owner of the property. He contended that the maternal grandfather of the plaintiff never transferred the property in favour of defendant No.1/V.K.Jetly. He argued that defendant No.1 was just a nominee of B.B.S.Jetly and he was never admitted as a member of the society. He contended that a nominee could have become a member in accordance with the bye-laws of the society. He argued that defendant No.1 was not qualified to be a member of the Society as he was not a Government Servant. He mentioned that although, the bye-laws of the Society allowed the membership to a non-Government Servant, but it contained a rider that such a membership should be ratified by the Managing Committee of the society. He argued that there is no evidence to demonstrate that the membership of defendant No.1 was CS No.57434/2016 Rajat Bali Vs V.K.Jetly & Ors. Page 13 of 38 ratified by the Managing Committee.
19. Counsel for plaintiff questioned the authenticity of the perpetual sub- lease deed mentioning that the same was executed fraudulently. He argued that although, defendant No.1 has set up a case that his father B.B.S.Jetly executed the perpetual lease deed as his attorney but there is no evidence to prove this aspect. He mentioned that it can be seen from the lease deed that the same has been executed by B.B.S.Jetly in his personal capacity and not as an attorney of defendant No.1. He mentioned that the original Power of Attorney, purportedly executed by defendant No.1 in favour of B.B.S.Jetly, was not found traceable in the record and this raises serious question mark over the existence of the same. He contended that defendant No.1 was duty bound to produce the said document but it failed to do so. He mentioned that the perpetual sub-lease deed was executed under suspicious circumstances and this is borne out from the chain of events preceding the execution of the perpetual sub-lease deed.
20. Counsel for the plaintiff argued that it is a settled law that a nomination does not confer ownership on the nominee and he holds the property in trust for the other co-sharers. He mentioned that defendant No.1 was holding the property in trust but he created a fraudulent perpetual sub- lease deed to usurp the shares of co-owners. He argued that the interest in an immovable property can be created and transferred only by way CS No.57434/2016 Rajat Bali Vs V.K.Jetly & Ors. Page 14 of 38 of a registered document and the letter dated 05.10.1967, written by B.B.S.Jetly, to the society, to execute the perpetual sub-lease deed of the plot in favour of his son V.K.Jetly, cannot be taken as a substitute for a registered document. He argued that the plea of defendant No.1 that he became owner by way of adverse possession is not maintainable. He mentioned that the plea of adverse possession and ownership are mutually destructive and as such cannot be taken simultaneously. He mentioned that the suit cannot be taken to be barred by limitation. He mentioned that in a suit for partition, possession of one of the co-owners is deemed to be the possession on behalf of the other co-owners of the property. He mentioned that no limitation period is prescribed for seeking partition of a joint property. He stated that plaintiff came to know about the forgery only after going through the written statement of defendant No.1. He mentioned that on gaining information about the forged perpetual lease deed, plaintiff immediately amended the plaint and sought a declaration to get the same nulified. He mentioned that the transaction made by B.B.S Jetly is hit by Benami Transactions (Prohibition) Act, 1988. He prayed that the suit may be decreed.
21. In support of arguments, plaintiff placed reliance on the decisions in the matters of "Sushila Devi Bhaskar Vs. Ishwar Nagar Cooperative House Building Society Ltd. & Ors." 45 (1991) DLT 518, "Ashok CS No.57434/2016 Rajat Bali Vs V.K.Jetly & Ors. Page 15 of 38 Chand Aggarwala Vs. Delhi Administration & Ors." 1998 VII AD (Delhi) 639, "Indrani Wahi Vs. Registrar of Coop. Societies & Ors." AIR 2016 SC 1969, "Gangamma & Ors. Vs. Shivlingaiah"
MANU/SC/1307/2004 : (2005) 9 SCC 359, "Sri Sri Sri Kishore Chandra Singh Deo Vs. Babu Ganesh Prasad Bhagat & Ors." AIR 1954 SC 316, "Ningawwa Vs. Byrappa & Or MANU/SC/0145/1968 :
AIR 1968 SC 956, "Santosh Arora & Ors. Vs. M.L. Arora" 211 (2014) DLT 312 (DB), "Md. Mohammad Ali Vs. Jagadish Kalita & Ors."
(2004) 1 SCC 271, "Karnataka Board of Wakf Vs. Govt. of India & Ors." (2004) 10 SCC 779, "Saroop Singh Vs. Banto & Ors." JT 2005 (9) SC 200, "T. Anjanappa & Ors. Vs. Somalingappa & Anr." (2006) 7 SCC 570, "Raghunath Roy & Ors. Vs. Ishwari Devi & Ors." 2014 IX AD (Delhi) 514, "Harbans Kaur & Ors. Bhola Nath & Anr." 57 (1995) DLT 101, "R.V.E. Venkatachala Gounder Vs.Arulmigu Visweswaraswami and V.P. Temple & Anr." AIR 2003 SC 4548, "Narashimaha Murthy Vs. Susheelabai & Ors." (1996) 3 SCC 644, "G. Sekar Vs. Geetha & Ors." JT 2009 (5) SC 496, "Sameer Magoo Vs. Vijay Magoo" 2009 Law Suit (Del) 116 and "Shashi Bahadur & Anr. Vs MalkaBahadur" Judgment dated 24.01.2018 passed by the Hon'ble Delhi High Court in RFA No. 72 of 2018.
Arguments on behalf of Defendants
22. On the other hand, counsel for the defendant No.1/V.K.Jetly argued CS No.57434/2016 Rajat Bali Vs V.K.Jetly & Ors. Page 16 of 38 that the suit is barred by limitation. He mentioned that defendant No.1 is the sole and exclusive owner of the property and the question of carrying out the partition does not arise. He argued that defendant No.1 became the absolute owner of the property on the basis of the perpetual sub-lease deed and he continued to exercise right over the property to the knowledge of the plaintiff and other defendants. He argued that defendant No.1 obtained loan for carrying out the construction over the allotted plot of land by executing a mortgage deed. He mentioned that B.B.S.Jetly stood guarantor in the said mortgage deed. He argued that defendant No.1 executed the mortgage deed in the capacity of the owner of the property, to the knowledge of B.B.S.Jetly. He mentioned that perpetual sub-lease deed is a registered document and every person can be taken to have deemed knowledge of the same under Section 3 of the Transfer of Property Act. He contended that the mother of the plaintiff never sought partition of the property during her lifetime. He argued that the plaintiff also never sought the partition of the property during the lifetime of his mother. He mentioned that plaintiff cannot be allowed to challenge the perpetual sub-lease deed after a period of more than 30 years. He mentioned that even if it is presumed that plaintiff could not file the suit because he was a minor, the disability was removed on the day he turned major but still, he filed the suit after 11 years and therefore, the same is barred by limitation. CS No.57434/2016 Rajat Bali Vs V.K.Jetly & Ors. Page 17 of 38
23. Counsel for defendant No.1 submitted that none of the other defendants stepped into the witness box to support the plaintiff's claim for partition. He mentioned that the perpetual lease deed is authentic and it cannot be questioned. He stated that there is a presumption about the genuineness of a registered document which is more than 30 years old. He mentioned that even if it is taken that the Sub-Registrar made a mistake at the time of execution of the perpetual sub-lease deed, still, an innocent party cannot be made to suffer on account of such mistake. He argued that although, plaintiff has disputed the membership of defendant No.1 but he has not sought any relief that the membership may be declared null and void. He mentioned that plaintiff has taken a vague plea that the perpetual sub-lease deed was executed fraudulently but there are no specific pleadings in the plaint. He argued that plaintiff cannot be allowed to take the plea of benami transaction as there are no pleadings to the said effect. He mentioned that the documents of the property were submitted to the LIC at the time of execution of mortgage deed and had there been any fraud, the same would have been discovered. He mentioned that any challenge on the membership of the society should have been laid before the Registrar of Society as a complete mechanism in this regard has been provided under the Bombay Co-operative Societies Act, 1925. He mentioned that since the plaintiff is claiming his share through B.B.S.Jetley, therefore, the only CS No.57434/2016 Rajat Bali Vs V.K.Jetly & Ors. Page 18 of 38 remedy would have been under the Bombay Co-operative Societies Act. Counsel mentioned that there is no merit in the suit and the same should be dismissed.
24. In support of his arguments, defendant no.1 placed reliance on the decisions in the matters of "Satinder Nath Choudhury Vs. Jatinder Nath Choudhury" [AIR 1935 PC 165], "Gian Chand & Bros. Vs. Rattan Lal" [(2013) 2 SCC 606], "Bishnudeo Narain & Anr. Vs. Seogeni Rai Jagernath" [AIR 1951 SC 280], "Surendra Pal Vs. Dr. (Mrs.) Saraswati Arora" [(1975) 1 SCR 687 : 1974 (2) SCC 600] , "Chatti Konati Rao Vs. Palle Venkata Subba Rao" [(2010) 14 SCC 316], "Smt. Diboo (Dead) by LRs & Ors. Vs. Smt. Dhanraji (Dead) & Ors." [(2000) 7 SCC 702], "Mohammad Yunus Khan Vs. Special Manager Court of Wards & Anr." [AIR 1937 Oudh 301], "Prakash & Ors. Vs. Phulavati & Ors." [AIR 2016 SC 769] and "Ram Niwas (Dead) through LRs Vs. Bano (Smt.) & Ors." (2000) 6 SCC 685.
25. I have perused the record in the light of respective arguments.
Issue-Wise Findings Issue No.1:Whether B.B.S.Jetly was the sole owner of the suit property bearing No.1/3, Shanti Niketan, New Delhi and on his demise, it devolved equally on all his legal heirs? OPP Issue No.2:Whether V.K.Jetly (defendant No.1) ever acquired the title of the suit property bearing No.1/3, Shanti Niketan, New Delhi during the lifetime of B.B.S.Jetly? OPD
26. Both the issues are being taken up together as they are interconnected. CS No.57434/2016 Rajat Bali Vs V.K.Jetly & Ors. Page 19 of 38
The onus of Issue No.1 was placed on the plaintiff while the onus of Issue No.2 was placed on defendant No. 1. It is the case of the plaintiff that the society allotted the plot of land to B.B.S.Jetly and he raised construction over the same from his own funds. Plaintiff claims that B.B.S.Jetly died intestate and therefore, the property devolved on all the legal heirs in the manner prescribed under the Hindu Successions Act. In order to support this stand, plaintiff stepped into the witness box and filed his evidence by way of affidavit wherein he supported the contents of the plaint. Plaintiff placed reliance on the admission form dated 26.07.1963 Ex.D-1W7/2 whereby B.B.S.Jetly became the member of the society. He mentioned that the society allotted the Membership No.AB/2134 to B.B.S.Jetly. He stated that B.B.S.Jetly appointed defendant No.1 as his nominee and the said fact stands recorded in the admission form. He has put forward an argument that a nominee can become a member only in accordance with the bye-laws of the society. He submitted that after being admitted as a member, B.B.S.Jetly paid the admission fee and advance deposit to the society and he was allotted the plot of land in the year 1967. He mentioned that B.B.S.Jetly died intestate in the year 1983 and the property devolved upon his legal heirs.
27. Plaintiff stated in cross-examination that he came to know that his maternal grandfather raised construction over the suit property from his CS No.57434/2016 Rajat Bali Vs V.K.Jetly & Ors. Page 20 of 38 own funds. He mentioned that defendant No.1 kept assuring him that the property would be partitioned but he did not carry out the partition. He admitted that the construction over the suit property might have been raised by defendant No.1 but reiterated that it was the exclusive property of his maternal grandfather. He admitted that the property was rented out. He mentioned that as per his understanding, the property was rented out by his material grandfather but he does not know who used to collect rent for the same. He disputed the alleged transfer of membership of the society in favour of defendant No.1. He mentioned that defendant No.1 was not qualified to be a member of the society as he was not a Government employee. He stated that defendant No.1 was not validly enrolled as a member of the society. He stated that defendant No.1 failed to place on record any resolution of the society to demonstrate that he was admitted as a member of the society. He stated that defendant No.1 fraudulently got the perpetual sub-lease deed executed in his favour. He mentioned that while registering the perpetual sub-lease, the Sub-Registrar observed in its note that the same has been executed by B.B.S.Jetly.
28. Plaintiff further stated in cross examination that although defendant No.1 claims that his father executed the perpetual sub-lease deed, on his behalf, on the basis of a power of attorney but the said attorney was not produced during trial. He admitted that the perpetual sub-lease was CS No.57434/2016 Rajat Bali Vs V.K.Jetly & Ors. Page 21 of 38 approved by the competent authority but claimed that it was done fraudulently. He mentioned that in order to be a member, the approval of managing committee of the society was required but the same was neither taken nor placed on record. He claimed that the suit property is the exclusive property of his material grandfather and he is entitled to receive his share.
29. Defendant No.1 (through Legal Heirs, D1A to D1C) countered the stand of the plaintiff. It was their stand that B.B.S.Jetly never acquired the ownership of the suit property at any point of time. They claimed that V.K.Jetly became the sole owner of the property during the lifetime of his father. They submitted that B.B.S.Jetly willingly and knowingly ceased to be the member of the society and requested for registration of lease deed in favour of his son by following the due process of law. They mentioned that all the formalities were carried out and the requisite approval was obtained before executing the perpetual lease deed. They stated that V.K.Jetly became a member with the approval of the managing committee of the society and thereafter, the society allotted him the plot on the request of B.B.S.Jetly.
30. In order to substantiate their stand, defendants No.1A to 1C examined DW1 Nancy Jetly, wife of late V.K.Jetly. She placed reliance on letter dated 05.10.1967 Ex.D-1W1/2 written by B.B.S.Jetly to the society to execute the perpetual sub-lease deed of the plot in favour of his son CS No.57434/2016 Rajat Bali Vs V.K.Jetly & Ors. Page 22 of 38 V.K.Jetly. She placed on record admission form dated 06.10.1967 Ex.D-1W1/3 addressed to the Hony. Secretary of the society. In terms of this letter, V.K.Jetly made a request to the society that he may be admitted as its member. Defendants placed on record an affidavit dated 06.10.1967 Ex.D-1DW/4, purportedly submitted by V.K.Jetly, which contains an endorsement at the bottom by the Hony. Secretary that V.K.Jetly has been admitted as a member of the society. Defendants further relied on letter dated 10.10.1967 Ex.PW-1/1 addressed by the Hony. Secretary of the society to the Secretary (Land & Building), Delhi Administration, Vikas Bhawan, New Delhi. In terms of this letter, the Secretary of the society gave an intimation to the Secretary (Land & Building) that B.B.S.Jetly has requested that his son may be enrolled as a member in his place for the purpose of registration of the plot allotted to him. It was further conveyed in this letter that society has no objection to accede to the request of B.B.S.Jetly and admit his son as a member of the society in his place. Through this letter, the Secretary of the Society sought approval of Delhi Administration to enroll V.K.Jetly in place of B.B.S.Jetly as a member of the society for the purpose of registration of the plot. In response to the letter, Delhi Administration, Land & Building Department conveyed its approval vide letter dated 26.10.1967. It was mentioned in the letter that Lieutenant Governor has conveyed his sanction to transfer the plot of land, earmark for CS No.57434/2016 Rajat Bali Vs V.K.Jetly & Ors. Page 23 of 38 allotment to B.B.S.Jetly to his son, subject to fulfillment of two conditions; Firstly, V.K.Jetly should be enrolled as a member of the society provided he fulfills the requisite condition for membership and allotment of a residential plot; Secondly, he should furnish an affidavit that neither he nor his wife nor his dependents own a residential plot of land or house in New Delhi. It was mentioned that the affidavit should be supported with a certificate from the society that V.K.Jetly has been enrolled as a member of the society.
31. Pursuant to these developments, on 28.10.1967, a noting was circulated wherein it was mentioned that lease-deed in respect of V.K.Jetly was prepared some time back and in compliance of the said noting, Delhi Administration, vide letter dated 20.11.1967 Ex.D1W4/1, placed five copies of draft perpetual sub-lease form in respect of V.K.Jetly for signing. The said letter states that the necessary affidavit in the prescribed form has been received from V.K.Jetly and the approval for signing the lease deed has been taken from the Lieutenant Governor. After completing all these formalities, the perpetual sub-lease dated 20.11.1967 was duly registered in favour of V.K.Jetly at the Office of Sub-Registrar.
32. Plaintiff has not questioned the chain of events as disclosed in the aforesaid para. His grounds of challenge can be summarized as: (a) The perpetual sub-lease was obtained fraudulently; (b) The perpetual sub- CS No.57434/2016 Rajat Bali Vs V.K.Jetly & Ors. Page 24 of 38 lease was signed by B.B.S.Jetly as an attorney of V.K.Jetly but there is no evidence to establish that he was a duly constituted attorney to do so; (c) V.K.Jetly could not have become a member of the society as he was not a government servant; (d) In case, he was admitted as a member of the society, his membership was not valid as it was not ratified by the Managing Committee of the society and; (e) That B.B.S.Jetly continued to be a member of the society and the status of V.K.Jetly was that of a nominee only and no ownership could have been conferred on the nominee.
33. Since, a separate Issue No.3 has been framed regarding the alleged forgery of the perpetual sub-lease deed, therefore, the grounds of challenge contained in (a) above shall be dealt with while dealing with the said issue. In so far as the other grounds of challenge are concerned, there appears to be no merit in either of them. The chain of events, as proved from the evidence brought on record in the form of the testimonies of witnesses and documents, establish that during his lifetime, B.B.S.Jetly made a request to the society that his son may be enrolled as a member of the society in his place. Pursuant to the request of B.B.S.Jetly, the Hony. Secretary of the Society wrote a letter dated 10.10.1967 to the Secretary, Land and Building soliciting the approval of Delhi Administration to enroll V.K.Jetly as a member of the society in the place of his father. The Secretary of the Society disclosed in the CS No.57434/2016 Rajat Bali Vs V.K.Jetly & Ors. Page 25 of 38 letter that B.B.S.Jetly has been allotted a plot of land and he had requested that his son may be enrolled as a member of the society in his place for the purpose of registration of the plot allotted to him. In response, Delhi Administration (Land and Building Department) conveyed its approval to transfer the plot earmark for allotment to B.B.S.Jetly to his son V.K.Jetly subject to fulfilling of certain conditions. After fulfilling the requisite conditions, a perpetual sub- lease deed was executed in favour of V.K.Jetly.
34. In terms of the perpetual sub-lease deed, V.K.Jetly acquired rights in respect of the suit property. The mutual rights and obligations created in terms of the perpetual sub-lease deed stands recorded in the various clauses of the perpetual sub-lease. The Clause 6(a) of the perpetual sub-lease deed contains a condition that the sub-lessee shall not sell, transfer, assign or otherwise part with the possession of the whole or any part of the residential plot to any person, who is not a member of the society. The Clause 6(b) contains another condition that the sub- lessee shall not transfer the possession of the residential plot to any other member of the society except with the previous consent of the society, which shall be in writing. There is evidence on record to establish that the perpetual sub-lease was executed after fulfilling all the requisite formalities. V.K.Jetly was an enrolled member of the society at the time of execution of the perpetual sub-lease deed. The CS No.57434/2016 Rajat Bali Vs V.K.Jetly & Ors. Page 26 of 38 perpetual sub-lease deed was duly registered at the Office of concerned Sub-Registrar.
35. I find no merit in the arguments of the plaintiff that the perpetual sub- lease deed did not confer any title on V.K.Jetly because he was not competent to be a member of the society. It is a settled law that the title and rights in respect of immovable property can be conveyed only by a registered document. In the present matter, the society executed a registered document in the form of perpetual sub-lease and transferred rights in respect of the suit property to V.K.Jetly. B.B.S.Jetly, father of V.K.Jetly, signed the perpetual sub-lease deed on behalf of his son. Prior to that, he made a request to the society that his son may be enrolled as a member of the society in his place for the purpose of the registration of the allotted plot of land. There is material on record to show that V.K.Jetly kept exercising his rights as the owner of the property, to the knowledge of his father. He executed a mortgage deed of the property wherein his father stood guarantor. In view of these circumstances, defendant no.1 discharged the onus of establishing that he acquired the title of the suit property during the lifetime of his father B.B.S.Jetly.
36. It is a well settled principle of law that the onus lies on a person ascertaining a particular fact to affirmatively establish it. Plaintiff claimed that B.B.S.Jetly was the sole owner of the suit property but CS No.57434/2016 Rajat Bali Vs V.K.Jetly & Ors. Page 27 of 38 failed to establish this fact. He submitted that the perpetual sub-lease deed was not executed properly as the original Power of Attorney was not produced in the court. I do not agree with the said line of argument. Even if it is taken that the Sub-Registrar committed a mistake at the time of executing the perpetual sub-lease deed, it does not mean that the perpetual sub-lease deed needs to be discarded. I find myself in agreement with the submissions made on behalf of defendant no.1 that nothing done in good faith by any registering Officer shall be deemed invalid merely because of the defect in procedure and such an action is protected under Section 87 of the Registration Act, 1908. There is no concrete evidence to draw a finding that the Power of Attorney never existed at any point of time. No such conclusion can be drawn merely because the original Power of Attorney was not found in the file produced from Delhi Development Authority.
37. Coming to the challenge made by the plaintiff to the membership of V.K.Jetly. It is the plaintiff's case that V.K.Jetly was not a Government servant and therefore, he could not have been admitted as a member of the society. He has further submitted that, in case, a non-member is admitted as a member of the society, the same needs to be rectified by the Managing Committee of the Society, which was not done in the present case. I find no substance in these arguments. Admittedly, till date, plaintiff had not challenged the membership of V.K.Jetly. The CS No.57434/2016 Rajat Bali Vs V.K.Jetly & Ors. Page 28 of 38 present suit also does not contain any prayer to the effect that the membership of V.K.Jetly be declared null and void. It may be noted that the allotment of the property does not confer any right on a member of the society except the right to get the perpetual lease deed executed in his/her favour subject to the approval of the concerned authority. The right over the property gets crystallized only on the execution of the perpetual sub-lease deed. In the present matter, the concerned authority granted the approval for executing the perpetual lease deed in favour of V.K.Jetly subject to certain conditions which were duly complied with. Once, the perpetual lease deed was executed, it conferred various rights on V.K.Jetly which were akin to that of an owner of the property. Neither society nor B.B.S.Jetly challenged the membership of V.K.Jetly at any point of time.
38. As observed earlier, there is evidence to show that V.K.Jetly kept exercising his rights of ownership to the knowledge of B.B.S.Jetly, who never objected to the same. Plaintiff, at best, can be taken to be exercising his right through B.B.S.Jetly. Since, B.B.S.Jetly did not acquire any title in respect of the property, therefore, the question of the same getting devolved on the plaintiff does not arise. Plaintiff is claiming that the perpetual sub-lease deed should be declared null and void. The rights in the suit property are flowing only from the perpetual sub-lease deed. In case, the same is declared to be null and void, no CS No.57434/2016 Rajat Bali Vs V.K.Jetly & Ors. Page 29 of 38 right would be left which may devolve upon the plaintiff as B.B.S.Jetly never acquired the title of the property.
39. In view of the discussion made in the aforesaid paras, I have reached at a conclusion that it is established from the evidence that V.K.Jetly acquired the title of the suit property and his father B.B.S.Jetly was not the owner of the suit property. B.B.S.Jetly never acquired ownership of the suit property. He did not challenge the perpetual sub-lease deed during his lifetime. There is evidence to demonstrate that he accepted V.K.Jetly as the owner of the property. Accordingly, Issue No.1 nd 2 are decided in favour of defendant No.1 and against plaintiff & other defendants.
Issue No.3: Whether perpetual sub-lease deed dated 20.11.1967 was obtained by fraud/forgery or is otherwise illegal? OPP
40. It was alleged by the plaintiff that V.K.Jetly obtained the sale-deed by fraudulent means. It is a well settled principle of law that a person who asserts a particular fact is required to affirmly establish it. The burden of proving the facts rests on the party who substantially asserts the affirmative issues and not on the party who denies it. When fraud misrepresentation or undue influence is alleged by a party in a suit, normally, the burden is on the said party to prove such fraud, undue influence or misrepresentation. Reliance in this regard can be placed on the decision in the matter of "Anil Rishi Vs Gurbaksh Singh" 3(2006) CS No.57434/2016 Rajat Bali Vs V.K.Jetly & Ors. Page 30 of 38 5 SCC 558 and "Krishna Mohan Kul Vs Pratima Maty" 2004(9) SCC
468.
41. The burden of proof always remains on the plaintiff while the onus may keep on shifting. While making the distinction between the burden of proof and onus of proof, the Supreme Court of India made the following observation in the matter of "A.Raghavamma Vs A.Chenchamma" AIR 1964 SCC 136;
"12....There is an essential distinction between burden of proof and onus of proof: burden of proof lies upon the person who has to prove a fact and it never shifts, but the onus of proof shifts. The burden of proof in the present case undoubtedly lies upon the plaintiff to establish the factum of adoption and that of partition. The said circumstances do not alter the incidence of the burden of proof. Such considerations, having regard to the circumstances of a particular case, may shift the onus of proof. Such a shifting of onus is a continuous process in the evaluation of evidence."
42. In the present matter, plaintiff made vague allegations of fraud without setting forth the particulars as to in what manner the alleged fraud and forgery was committed. Order VI Rule 4 of the Code of Civil Procedure expressly provides that in all cases, in which the party relies on any misrepresentation, fraud, breach of trust, willful default or undue influence and in all other cases in which particulars may be necessary, the particulars, with dates & items, shall be stated in the pleadings. Plaintiff has neither pleaded nor led any evidence to substantiate the allegations of fraud. The plaint is bereft of any CS No.57434/2016 Rajat Bali Vs V.K.Jetly & Ors. Page 31 of 38 particulars of misrepresentation, fraud, breach of trust, willful default or undue influence with dates & time. Plaintiff has leveled vague allegations of fraud in the plaint but there is no evidence to prove the allegations.
43. Plaintiff took a line of argument that it is evident from the documents placed on record that the Secretary of the society committed fraud in collusion with defendant No.1. He mentioned that the Secretary did not follow the mandate of the managing committee and facilitated the execution of perpetual sub-lease deed in favour of defendant No.1. In addition to this, it has been alleged by the plaintiff that the perpetual sub-lease deed was signed by B.B.S.Jetly as an attorney of V.K.Jetly defendant No.1 without any authority. He has contended that although, a typed copy of a power of attorney, purportedly executed by V.K.Jetly in favour of B.B.S.Jetly, has been placed on record but the status of the original attorney is not ascertainable. He has mentioned that it is doubtful that the power of attorney was executed at any point of time. I do not find force in the said line of arguments.
44. As observed earlier, plaintiff has not challenged the membership of defendant No.1. The material placed on record shows that a perpetual lease-deed was executed in favour of defendant No.1. The perpetual lease-deed was duly registered at the office of concerned Sub-Registrar. Plaintiff has vehemently argued that the perpetual lease-deed does not CS No.57434/2016 Rajat Bali Vs V.K.Jetly & Ors. Page 32 of 38 contain an endorsement from the Registrar that B.B.S.Jetly signed the same as an attorney of V.K.Jetly. He has argued that the absence of endorsement shows that the perpetual lease-deed is not authentic. Record shows that all the formalities were complied with and the requisite approval was obtained from Lieutenant Governor before the perpetual sub-lease deed was presented for registration. The person presenting a document for registration has no control over the procedure adopted by the officer registering it. There is no evidence to establish fraud or malice on the part of the Sub-Registrar who carried out the registration. Nothing done in good faith by any registering officer shall be deemed invalid merely by reason of any defect in the procedure. Even if it is taken that the registering officer made a mistake by not making an endorsement in the perpetual sub-lease deed, V.K.Jetly should not be deprived of his property because of the error or inadvertence of the Sub-Registrar on whom he would have naturally placed reliance. I have reached at a conclusion that the plaintiff has failed to discharge the onus of establishing that the perpetual sub-lease deed was obtained by fraud. Accordingly, Issue No.3 is decided against the plaintiff & other defendants and in favour of defendant No.1. Issue No.4:- Whether the Legal Heirs/Successors of Mr. B.B.S.Jetly are entitled to any mesne profit/damages? OPP
45. The onus of this issue was placed on the plaintiff. In order to seek CS No.57434/2016 Rajat Bali Vs V.K.Jetly & Ors. Page 33 of 38 damages, plaintiff was duty bound to establish that he has a legal right and share in the property. In view of the findings of Issues No.1, 2 and 3, it is established the B.B.S.Jetly was not the owner of the suit property. It has been proved that V.K.Jetly acquired the title of the suit property by means of a perpetual sub-lease deed. On acquiring the title, he became the owner of the property. Plaintiff has claimed his share in the property as a legal heir of B.B.S.Jetly. Since, B.B.S.Jetly did not acquire any right in the property, therefore, the question of granting of mesne profit and damages to the plaintiff does not arise. Accordingly, Issue No.4 is decided against the plaintiff & other defendants and in favour of defendant No.1.
Issue No.5:- Whether V.K.Jetly can claim right to the suit property by adverse possession? OPP
46. Although, the onus of this issue was placed on the plaintiff but it was for the defendant no. 1 to etablish that he became owner of the suit property by adverse possession. Defendant no.1 took an alternative plea in defence that he perfected the title by way of adverse possession. It was submitted on behalf of defendant no.1 that this is an alternative plea without prejudice to the main plea of defence that he was the exclusive owner, in possession, of the suit property. Counsel for defendant No.1 submitted that even if it is assumed that B.B.S.Jetly was the owner of the suit property, V.K.Jetly had been in exclusive CS No.57434/2016 Rajat Bali Vs V.K.Jetly & Ors. Page 34 of 38 possession and occupation of suit property since the year 1967. He mentioned that V.K.Jetly took loan against the property by mortgaging it and subsequently executed the redemption deed at the time of repayment of loan. He mentioned that these circumstances sufficiently indicates that V.K.Jetly kept exercising his right as the owner of the property and by doing so for more than 12 years, he perfected his title by way of adverse possession. On the other hand, plaintiff has countered these submissions.
47. In view the findings given in respect of Issues No. 1and 2, the issue no.5 has lost its relevance but nevertheless, findings needs to be given as the same was framed. On perusing the record in the light of evidence, I do not find any merit in the plea of adverse possession. I find myself in complete agreement with the stand of the plaintiff that the plea of adverse possession and ownership are mutual destructive pleas and as such cannot be taken simultaneously. In order to claim right in the suit property by adverse possession, defendant No.1 was required to admit that plaintiff has got title of the suit property, which is not the case. There is nothing on record to indicate that plaintiff and other defendants were ousted from the suit property. There is no evidence to substantiate the plea of adverse possession and the same needs to be rejected. In view of this, Issue No.5 is decided in favour of plaintiff and against defendant No.1.
CS No.57434/2016 Rajat Bali Vs V.K.Jetly & Ors. Page 35 of 38 Issue No.6:- Whether the suit is barred by limitation? OPD
48. The onus of this issue was placed on the plaintiff. Plaintiff filed the present suit for partition claiming himself to be one of the co-owners of the suit property and subsequently amended the suit by incorporating an additional relief of declaration to the effect that the perpetual sub- lease deed may be declared null and void. In so far as the relief of partition is concerned, the suit cannot be deemed to be barred by law of limitation as the possession of one of the co-owners is deemed to be the possession of the other co-owners of the property. Similarly, the relief of declaration is also not barred by limitation. Plaintiff has challenged the perpetual sub-lease deed on the ground that it was obtained fraudulently. It is the case of the plaintiff that he came to know about the perpetual lease deed only after going through the written statement filed by defendant no.1. There is nothing on record to indicate that plaintiff had any prior knowledge about the perpetual sub-lease deed. Counsel for the defendant has raised a plea of deemed knowledge mentioning that since the perpetual deed was registered, therefore, it should be taken that plaintiff had deemed knowledge of the same. He mentioned that in view of Explanations I and II of Section 3 of the Transfer of Property Act, every person is deemed to have a notice of a registered document. He mentioned that limitation period for filing a suit for declaration is 03 years and the time for seeking the relief CS No.57434/2016 Rajat Bali Vs V.K.Jetly & Ors. Page 36 of 38 started running from 20.11.1967 when the perpetual sub-lease deed was registered. I find no merit in these submissions. Article 56 of the Schedule under the Limitation Act, 1963 expressly states that the period of limitation of 03 years shall began to run 'when the issue or registration becomes known to the plaintiff'. The words used under the article are express and clear and do not warrant further interpretation. The article does not talk about 'deemed knowledge' but only the actual knowledge of registration or issue. In case, the arguments of deemed notice is accepted then there was no point in mentioning in Article 56 that the period of limitation shall began to run when the registration becomes known to the plaintiff and it would have been simply mentioned that limitation shall began to run from the date of registration. Plaintiff came to know about the existence of the perpetual lease deed only after going through the contents of the written statement filed by defendant no.1. On gaining the said information, plaintiff sought the relief of declaration within the limitation period of 03 years. Therefore, the suit is within limitation. Accordingly, Issue No.6 is decided against defendants and in favour of the plaintiff. Issue No.7:- Whether the plaintiff is entitled to a decree of partition as prayed for? OPP Issue No.8:- Whether the plaintiff is entitled to the cost of the suit? OPP Issue No.9:- Whether the plaintiff is entitled to the relief as prayed for in the suit? OPP CS No.57434/2016 Rajat Bali Vs V.K.Jetly & Ors. Page 37 of 38
49. In view of the findings given on Issues No. 1 and 2, plaintiff is not entitled to the relief of partition. In order to seek partition, plaintiff needs to establish that he has some right or title in the suit property. It has been proved that V.K.Jetly was the owner of the suit property and B.B.S.Jetly did not acquire the title of the property at any point of time. In case, V.K.Jetly died intestate, the property would devolve upon his surviving class-I legal heirs in the manner prescribed under the Hindu Succession Act but the plaintiff has no right to seek partition of the suit property. Accordingly, the Issue No.7 is decided against the plaintiff & other defendants and in favour of defendant no.1. In such circumstances, the question of awarding the cost of the suit and any other relief does not arise. Issues No. 8 and 9 are also decided against the plaintiff & other defendants and in favour of defendant no.1. In view of the findings given in respect of Issues No.1 to 9, the additional issues have become redundant. Resultantly, the suit stands dismissed.
50. Decree sheet be prepared. No order as to cost.
51. File be consigned to record room.
Announced in the open court on 20.03.2024 (Sudhanshu Kaushik) Addl. Sessions Judge-06 Patiala House Courts, New Delhi/20.03.2024 Note: Judgment has been passed in terms of transfer order No.50/D3/Gaz-
IA/DHC/2023 dated 14.12.2023 passed by the High Court of Delhi as the matter was reserved for orders.
CS No.57434/2016 Rajat Bali Vs V.K.Jetly & Ors. Page 38 of 38