Delhi District Court
Smt. Natho Devi vs Sh. Subhash Tiwari on 25 January, 2017
IN THE COURT OF SH. SANDEEP GUPTA, CIVIL JUDGE,
DELHI (WEST)02
SUIT NO.607110/16
Unique Case ID No 02401C0373022010
Smt. Natho Devi
W/o Sh. Ramji Lal,
R/o 5374/68, Ragarpura,
Karolbagh, New Delhi
..........................PLAINTIFFS
VERSUS
1. Sh. Subhash Tiwari
S/o Late Sh. JNP Tiwari,
R/o 5373/68, Ragarpura.
Karolbagh, New Delhi
2. Sh. Gyanender Prasad Tiwari
S/o Late Sh. J.N.P. Tiwari,
R/o 202/A3, Basant Lane,
Railway Colony, New Delhi
3. Asha Tiwari
4. Priti Tiwari
5. Ishmita @ Guria
6. Ashish
All resident of Quarter No.14/852, Lodhi Colony.
7. Sh. Shiv Shankar
S/o Sh. Rajjan Lal,
R/o Mohalla Jagat Nagar,
VPO Bhogaon, District Mainpuri (UP)
Also At : 3512/6, Ragarpura, Karolbagh, New Delhi.
.....................DEFENDANTS
Suit filed on - 11/04/1997
Judgment Reserved on - 19/01/2017
Date of decision - 25/01/2017
SUIT FOR POSSESSION
JUDGMENT: By this judgment I shall dispose off a suit for possession filed by the plaintiff against the defendants. Before adjudicating upon the issues framed in the present suit, I feel it necessary to dwell upon the plethora of pleadings in the present suit.
Pleadings of the plaintiff :
1. The brief facts of the case as per plaint are that the initial/original plaintiff was M/s Roop Rani Charitable Trust, 1/1 Roop Nagar, Delhi and its Attorney Sh. Anil Kumar Moria is duly authorised to file, sign and verify the present plaint on behalf of plaintiff. It is a matter of record that the present plaintiff Smt. Natho Devi was added as a plaintiff in array of parties pursuant to allowing of the application filed U/O 22 R.10 CPC vide order dt.24/11/03 and in that application it was stated that Smt. Natho Devi has purchased the suit property from M/s Roop Rani Charitable Trust on 27/10/1999 vide registered sale deed. However, it becomes necessary elucidate the facts averred in the present plaint by the initial plaintiff I.e. M/s Roop Rani Charitable Trust.
It is the case of the plaintiff that one Smt. Jaswanti Devi wife of Late Sh. Nathu Ram Gund was the owner of the property bearing No.5373/68, Reghar Pura, Karol Bagh, New Delhi and in possession of entire first floor and portion marked yellow on ground floor and during her life time she executed a registered Will dt.24/05/1988 thereby bequeathing the suit property in favour of M/s Roop Rani Charitable Trust besides other assets and property and after her death, the said Trust became the absolute owner of the suit property by virtue of said Will. It is further averred that thereafter the said property stands mutated in favour of the aforesaid Trust in the records of DDA and MCD on the basis of the said Will.
It is further the case of the plaintiff that the initial defendant no.1 Smt. Rani Tiwari (Since expired) was a tenant in respect of two rooms and verandah on the ground floor of the property in question since the life time of Smt. Jaswanti Devi @ Rs.125/ per month and has also encroached upon kitchen on the ground floor and also parted with the possession of the tenanted premises in favour of her son i.e. Sh. Subhash Tiwari without the written consent of Smt. Jaswanti Devi.
It is further averred that Sh. Subhash Tiwari (now defendant no.1) started creating hindrance in the peaceful possession of the aforesaid Trust for which plaintiff also lodged a complaint dt.28/08/1989 but no action was taken by the police. Thereafter, the Sh. Subhash Tiwari again threatened the employees of the Trust on 21/01/1990 to dispossess it from the first floor and finding no alternative, the initial plaintiff i.e. M/s Roop Rani Charitable Trust filed a suit on 22/01/1990 for permanent injunction against Sh. Subhash Tiwari for restraining him from creating any hindrance in peaceful use and occupation of the plaintiff with respect to the property in question.
It is further averred that a statusquo order was passed in that suit and a Local Commissioner was also appointed to ascertain the possession and to prepare the list of articles lying in the premises. The Local Commissioner submitted his report on 03/02/1990 alongwith the list of articles and the key of the premises was also placed on record. It is further averred that the articles found in premises belongs to Smt. Jaswanti Devi which was also admitted by Sh. Subhash Tiwari.
It is further the case of the said Trust that on 25/11/1991 when its AR Sh. K.K. Tiwari visited the premises in question, he found that defendant no.1 had dismantled some portion of the ground floor and had also taken illegal possession of the first floor as shown in green colour in the site plan. It is further averred that defendant no.1 is in unauthorised and illegal possession of the portion of the suit property as shown in green colour after dispossessing the plaintiff from the same.
It is further the case of the plaintiff that defendants have no right, title or interest in the portions on first floor and ground floor of the suit property and plaintiff being owner is entitled to its possession. Hence, the present suit was filed by the initial plaintiff i.e. M/s Roop Rani Charitable Trust seeking decree of possession with respect to the portions on the ground floor and first floor of the premises bearing No.5373/68, Reghar Pura, Karol Bagh, New Delhi as shown in yellow and green colour in the site plan.
As already mentioned above, since the application of Smt. Natho Devi U/O 22 R.10 CPC was allowed on her plea that now she is the assignee/transferee of the suit property by virtue of purchase of the same from M/s Roop Rani Charitable Trust, therefore, now present plaintiff is Smt. Natho Devi who is pursuing the present suit through her AR Sh. Anil Kumar Moria who is her son. It is also a matter of record that initially Smt. Rani Tiwari was defendant no.1 and Sh. Subhash Tiwari was impleaded as defendant no.2 in the present case, however, during the pendency of present suit Smt. Rani Tiwari was stated to have expired and her LRs who are presently defendant no.2 to 6 were arrayed as LRs of deceased defendant Ms. Rani Tiwari and they were proceeded with exparte vide order dt.13/02/02. It is also a matter of record that defendant no.7 Sh. Shiv Shankar Tiwari was impleaded in the present matter, pursuant to allowing of his application U/O 1 R.10 CPC vide order dt.03/04/12. Hence, considering the aforesaid circumstances, now defendant no.1 Sh. Subhash Tiwari and defendant no.7 are contesting the present suit.
Pleading of Defendants :
2. In the WS filed by the initial defendants i.e. Smt. Rani Tiwari and Sh. Subhash Tiwari, some preliminary objections were taken like that the suit filed by the plaintiff has not been signed and verified by a duly authorised person and same is liable to be dismissed. It is contended that the present suit filed by the Trust is not maintainable as the Trust is not a legal entity and moreover the trust deed is nor a registered one. It is further contended that the suit is bad for nonjoinder of necessary parties as the trustees are the necessary parties to be impleaded as plaintiff. It is contended that the suit is liable to be stayed U/S 10 of CPC as prior to the present suit the plaintiff had filed a suit for permanent injunction bearing No.79/90. It is further contended that the plaintiff has concealed the material facts from the Hon'ble Court. It is contended that plaintiff has not valued the suit property for the purpose of court fees and jurisdiction and moreover the value of the property in dispute is more than Rs.6Lakhs, hence, this Hon'ble Court has no jurisdiction to try and entertain the present suit.
In reply on merits the defendants have denied all the averments made in the plaint as false and frivolous and it has been prayed that the suit be dismissed with costs.
3. Separate WS was filed by the defendant no.7 in which some preliminary objections were taken like that the reliefs sought by the plaintiff in the present suit are under dark cloud. It is contended that the answering defendant has filed a suit for cancellation of sale deed of plaintiff and said suit is pending as well. It is further contended that plaintiff has illegally obtained the sale deed by taking the benefit of the dismissal period of the suit filed by the answering defendant. It if further contened that the suit is liable to be dismissed as it is barred U/O 7 R.11 CPC.
In reply on merits, the defendant has denied all the averments made in the plaint as false and frivolous and it has been prayed that the suit be dismissed with costs. It is further contended by defendant no.7 that he had purchased the suit property by virtue of valid title documents executed by Late Smt. Jaswanti Devi and the alleged Will dt.25/05/1988 is forged and fabricated. It is further contended that defendant no.7 was neighbour of Smt. Jaswanti Devi who was not capable of bearing the expenses of her medical treatment. It is also contended that defendant no.1 is regularly paying rent to defendant no.7 being the tenant in suit property.
4. Replication has also been filed on behalf of plaintiff to the WS of defendants wherein the averments made in the WS were denied and those made in the plaint were reiterated and reaffirmed.
5. From the pleadings of the parties the following issues were framed on 22/01/1998 :
1. Whether the suit is liable to be stayed U/S 10 of CPC? OPD
2. Whether the suit is bad for misjoinder and nonjoinder of necessary parties? OPD
3. Whether the suit has been properly valued for the purpose of court fee and jurisdiction? OPP
4. Whether plaintiff is entitled for possession of suit property? OPP
5. Relief.
6. That in order to prove her case plaintiff got examined eight witnesses in PE which are as under : Head Constable Devender Singh, No.1448/C, PS Prasad Nagar, Delhi was examined as PW1 who deposed that he has not brought the summoned record as the same has been destroyed and placed on record a letter to this effect issued by SHO, PS Prasad Nagar which is exhibited as Ext. PW1/A. Head Constable Hari Om, No.82/PCR, Record Branch, Mangolpuri, Delhi was examined as PW2 who also deposed that he has not brought the summoned record as the same has been destroyed vide order dt.30/04/1992 and placed on record the photocopy of said order which is exhibited as Ext. PW2/A. Both the PW1 and PW2 were not crossexamined on behalf of defendants.
Sh. Jai Pal Singh Patwari, Survey and SettlementI, DDA, Vikas Sadan, INA was examined as PW3 who deposed that he has brought the record pertaining to property in Khasra No.3499/379, BlockC, Basti Raigar, Revenue State, Karol Bagh which was transferred in the name of M/s Roop Rani Charitable Trust from Smt. Jaswanti Devi vide mutation No.26878 dt.01/02/1994. This witness has exhibited one document i.e. copy of Jamabandi which is exhibited as Ext. PW3/A. This witness was crossexamined only by counsel for defendant no.2.
Sh. Jai Narain, UDC, Office of SubRegistrarI, Kashmere Gate Delhi was examined as PW4 who deposed that he has brought the record pertaining to registration of GPA executed by Smt. Natho Devi in favour of Sh. Anil Kumar Moriya and placed on record the photocopy of said GPA which is exhibited as Ext. PW4/1. This witness was also crossexamined only by counsel for defendant no.2.
Sh. Indraj Singh Singh, LDC, Office of SubRegistrarII, Kashmere Gate, Delhi was examined as PW5 who deposed that he has brought the record pertaining to sale deed executed by M/s Roop Rani Charitable Trust in favour of Smt. Natho Devi. This witness compared the record brought by him with the original sale deed and same is exhibited as Ext. PW5/1. This witness was also cross examined by counsel for defendant.
Smt. Natho Devi i.e. plaintiff examined herself as PW6 and she tendered her evidence by way of affidavit Ext. P6. It is pertinent to mention here that plaintiff being old lady of 70years was discharged unexamined vide orders dt.01/08/06.
Thereafter, Sh. Anil Kumar Moria i.e Attorney of the plaintiff was examined as PW7 and he tendered his evidence by way of affidavit Ext. P7. Some documents were also exhibited by PW7 which are as under : The house tax payment receipt is Ext. PW7/A. The site plan is Ext. PW7/B. The certified copy of the suit bearing No.107/1993 titled as M/s Roop Rani Charitable Trust V/s Sh. Rani Tewari is Ext. PW7/C. The copy of minutes of the meeting of Board of Trustees dt.16/05/1996 executed in favour Sh. Mohan Singh by the other Trustee Rahu Singh to deal with the suit property is marked as MarkA. The report of Local Commissioner is Ext. PW7/D. The certified copy of judgment dt.30/09/11 is Ext. PW7/D1. The certified copy of the judgment dt.04/04/02 passed on eviction petition is Ext. PW7/D2. The certified copy of the cancellation of GPA on behalf of Rooprani Charitable Trust is Ext. PW7/D3. The certified copy of the statusquo order passed in suit bearing no.79/90 is Ext. PW7/D4. The certified copy of the plaint with respect to the suit bearing No.183/1997 is Ext. PW7/D5. The copy of the plaint of eviction petition No.86/91 is Ext. PW7/D6. The copy of plaint and eviction petition No.87/1991 is Ext. PW7/D7. The certified copy of the WS filed by the Roop Rani Charitable Trust filed in Suit No.1122/6/93 is Ext. PW7/D8. PW7 was also crossexamined by the counsel for defendants at length.
Sh. Sanjay Kumar Zonal Inspector from House Tax Department, Karol Bagh, New Delhi was examined as PW8 who deposed that he has brought the record pertaining to house tax with respect to property bearing No.5373/68, Regerpura, Karol Bagh, New Delhi which is mutated in the name of M/s Rooprani Charitable Trust for the purpose of payment of property tax. This witness exhibited the mutation letter as Ext. PW8/A (OSR). This witness was also cross examined by the counsel for defendant and in his crossexamination this witness exhibited the two letters dt.04/04/90 and 20/04/90, whereby their office had summoned the applicant, as Ext. PW8/D1 and PW8/D2 respectively. The copy of application for mutation dt.06/10/1989 is Ext. PW8/D3.
On the other hand, defendants got examined two witnesses i.e. defendant no.1 Sh. Subhash Tiwari as DW1 who led his evidence by way of affidavit Ext. D1 wherein he reiterated the averments made in the WS. Some documents were also exhibited by DW1 which are as under : The certified copy of the WS filed by the mother of the deponent in the suit bearing No.107/93 is Ext. DW1/1 and that filed by the deponent himself is Ext. DW1/2. The certified copy of the order sheet of the said suit is Ext. DW1/3. The document exhibited as Ext. DW1/4 has already been exhibited as Ext. PW7/D4. The certified copy of the WS filed by the deponent in suit bearing No.183/1997 is Ext. DW1/5 and the certified copy of the replication filed in the said suit is Ext. DW1/6. The certified copy of order sheets of suit bearing No.183/1997 are Ext. DW1/7. The document exhibited as Ext. DW1/8 has already been exhibited as Ext. PW7/D6. The certified copy of the WS filed by the deponent in the eviction petition bearing No.86/1991 is Ext. DW1/9 and the certified copy of the replication filed in the said eviction petition is Ext. DW1/10. The document exhibited as Ext. DW1/11 has already been exhibited as Ext. PW7/7. The certified copy of the WS filed by the deponent in eviction petition bearing No.87/1991 is Ext. DW1/12 and the certified copy of the replication filed in the said eviction petition is Ext. DW 1/13. This witness was also crossexamined by the counsel for plaintiff.
The second witness examined by the defendants is defendant no.7 i.e. Sh. Shiv Shankar as D7W1 who led his evidence by way of affidavit Ext. D7W1/A wherein he reiterated the averments made in the WS. Some documents were also exhibited by D7W1 which are as under : The photocopy of certified copy of Ikrarnama and Vasiatnama purportedly executed by Smt. Jaswanti Devi in favour of defendant no.7 are marked as MarkD7/1 to D7/3 respectively. The photocopy of certified copy of judgment dt.30/09/2011 passed by Ld. ARC is marked as MarkD7/4. The photocopy of the certified copy of the suit bearing No.20/2000, filed by the deponent thereby challenging the execution of the sale deed dt.27/10/1999, is marked as MarkD7/5. The photocopy of the certified copy of the order of dismissal of suit No.432/93 is marked as MarkD7/6 and that of the order of its restoration is marked as MarkD7/7. The photocopy of the certified copy of legal notice dt.09/09/1998 sent by the deponent to Sh. Subhash Tiwari and Smt. Rani Tiwari is marked as MarkD7/8. The photocopy of the certified copy of rent receipts each for a sum of Rs.1,500/ are marked as MarkD7/9 to D7/11 respectively. The photocopy of the certified copy of amended suit for declaration and permanent injunction bearing No.432/93 is marked as MarkD7/12. The photocopy of the legal notice dt.07/10/1993 is marked as Mark D7/13 and photocopies of its postal receipts are marked as Mark D7/14. This witness was also crossexamined by the counsel for plaintiff.
7. The arguments have been heard on behalf of plaintiff and the record has been carefully perused. Now, I shall give my issue wise findings which are as under : First, I shall take up the issue no.4 and decide the same.
8. ISSUE NO.4 Whether plaintiff is entitled for possession of suit property? OPP The onus to prove this issue was upon the plaintiff. The genesis and nucleus behind the claim of possession made by the plaintiff is that the plaintiff had purchased the suit property from M/s Rooprani Charitable Trust in whose favour, Smt. Jaswanti Devi, the erstwhile owner of the suit property had executed a registered Will dt. 24.05.1988, hence considering the said averment, it becomes a sinequanon and imperative for the present plaintiff to prove the lawful ownership of M/s Rooprani Charitable Trust (who was the initial plaintiff in present suit) over the suit property. However, perusal of the entire evidence and record shows that there is no such Will ever produced on record purportedly executed by Smt. Jaswanti Devi in favour of M/s Rooprani Charitable Trust. Proving of the alleged registered WILL becomes crucial keeping in view that the alleged title of the present plaintiff Smt. Natho Devi over the suit property primarily rests upon the previous lawful ownership of M/s Rooprani Charitable Trust over the suit property. However, neither any witness was examined by plaintiff to prove any such registered will nor any copy of such Will was ever placed on record in evidence. The only document adduced in evidence in respect of the ownership of M/s Rooprani Charitable Trust is the copy of Jamabandi Ex.PW3/A. However, it is a settled proposition of law that mutation in the revenue records or in the records of any other government authority does not confer any right, title, interest of ownership of that person unless and until valid title documents executed in favour of that person are placed on record.
The Court deems it fit to mention here the observations made in State Of Jharkhand And Ors. vs Arjun Das on 5 October, 2004 (2004 (3) BLJR 1998, 2004 (4) JCR 535). The relevant para is quoted here as under: "...6. There is no dispute with regard to the legal proposition of law that mutation proceedings is not judicial proceeding and the right, title and interest cannot be determined in such proceedings. It is a fiscal inquiry only for the purpose of collection of revenue.
7. In the case of (Thakur) Nirman Singh and Ors. v. Thakur Lal Rudra Partab Narain Singh and others. AIR 1926 PC 100 it was held that it is an error to suppose that the proceedings for the mutation of names are judicial proceedings in which the title to and the propriety rights in immovable property are determined. They are nothing of the kind as has been pointed out times innumerable by the Judicial Committee. They are much more in the nature of the fiscal inquiries instituted in the interest of the State for the purpose of ascertaining which of the several claimants for the occupation of certain denominations of immovable property may be put into occupation of it with greater confidence that the revenue for it will be paid, ...
...11. In the light of the settled proposition of law laid down by various Courts we are also of the view that in a mutation proceedings the Circle Officer is not supposed to determine the title and the proprietary right in immovable property for the reason that orders in mutation proceedings are not evidence that the successful applicant is in possession as sole legal owner in a proprietary sense to the exclusion of others. But at the same time the Circle Officer is not precluded from considering the evidence on the basis of which applicant is claiming possession, (emphasis given)..."
Moreover during cross examination of PW3 who proved the copy of Jamabandi, he deposed that there is no mention in the register of mutation as to whether the department had verified the original document on the basis of which the mutation was made. It is further significant to observe that there is no document whatsoever regarding the establishment and registration of M/s Rooprani Charitable Trust. Here I would like to quote the relevant provision of Section 5 and 6 of Indian Trust Act 1882 which governs the creation of trust in relation of immovable property and both the sections are reproduced as under:
Section 5: No Trust in relation to immovable property is valid unless declared by a nontestamentary instrument in writing signed by the author of the trust or the trustee and registered, or by the Will of the author of the trust or the trustee.
Section 6: Creation of trust subject to provision of Section5, a trust is created when the author of the trust indicates with reasonable certainly by any word or acts (a) an intention on his party to create thereby a trust; (b) the purpose of trust; (c) the beneficiary; and (d) the trust property, and (unless the trust is declared by Will or the author of the trust is himself to be the trustee) transfers the trust property to the trustee."
Hence, it is a well established proposition of law and legislative mandate that a trust has to be created through a written instrument duly registered but in the present case, no such registered trust deed was placed on record to justify the lawful creation of M/s Rooprani Charitable Trust. There is a document Marked 'A' showing minutes of meeting of Board of Trustees held on 16.05.1996 wherein Sh. Mohan Singh, one of the trustees was given authority to do any act in relation to the suit property and by virtue of which, Sh. Mohan Singh had executed the sale deed Ex. PW5/1 on behalf of M/s Rooprani Charitable Trust in favour of Smt. Natho Devi, however, neither any original of said minutes was produced nor as already discussed above, any document whatsoever was placed on record in respect of creation and registration of any such trust. If the plea of any such trust is accepted on the basis of oral evidence, then it can tantamount to posing danger to anybody's property because then it would be open for anybody to raise a plea of any oral trust. Hence, the very creation and lawful existence of M/s Rooprani Charitable Trust is doubtful and suspicious, then consequently the execution of sale deed in favour of present plaintiff becomes questionable and debatable. It is also a settled preposition of law that even if the present plaintiff Smt. Natho Devi was substituted as the plaintiff under Order 22 Rule 10 of CPC still, assignee is bound by the previous proceedings in the suit and her right only is regarding further prosecution of the suit. It is noteworthy that initially the present suit was filed by M/s Rooprani Charitable Trust through its attorney Sh. Anil Kumar Moria, however no document be it any copy of minutes of board meeting or any authority letter was ever produced or placed on record to show that Sh. Anil Kumar Moria was given lawful authority to institute and prosecute in the present suit on behalf of M/s Rooprani Charitable Trust and though Sh. Anil Kumar Moria later on had been pursuing the present suit as attorney holder of Smt. Natho Devi also by virtue of the GPA Ex.PW4/1, but that does not tantamount of curing of the earlier illegality and deficiency in the case of plaintiff.
It may further be appreciated that since beginning, the primary defence raised by defendant no.7 Shiv Shankar that he had purchased a suit property by virtue of the documents executed by Late Smt. Jaswanti Devi in his favour and in this regard he placed on record copies of Ikrarnama and vasiyatnama which are marked as Mark D7/1 to D7/3 but the plaintiff never took any legal action to seek cancellation of those documents, be it in the form of amendment in the present pleading or by way of a separate suit and instead only a suit for possession was filed and persued on the side of plaintiff.
Now the question arises as to whether a suit for possession only, without seeking the cancellation of documents w.r.t the suit property in favour of a particular person, is maintainable or not. To this, the Court deem it fit to mention here the observations made by Hon'ble Mr. Justice Manmohan Singh in Raj Kumari Garg vs. S. M. Ezaz & Ors I.A. Nos. 7178/2009 & 13107/2011 in CS (OS) No. 243/2009 decided on 07.03.2012. The relevant observations were made in Raj Kumari Garg (supra) are reproduced here as under for the sake of clarity: "...21. It is also pertinent to mention here that the plaintiff has filed the suit merely for possession which itself is not maintainable without seeking the cancellation of the sale documents. The plaintiff did not file any such suit for cancellation of the said sale documents within the limitation period of three years and even till date when about 13 years have passed, therefore, she now cannot ask for relief of cancellation of the sale documents, because it has become time barred after more than 10 years. It is also to be noted that the plaintiff had knowledge about the said transaction and if, the plaintiff had any grievance regarding the sale made by her in the year 1998, she could have filed the suit for cancellation of the documents immediately.
23. In the present case, it appears very clearly that the plaintiff without seeking declaration of cancellation of documents has filed the suit for possession in order to get rid of avoiding objection about period of limitation which is three years. She purposely and knowingly filed the suit for possession, where limitation is twelve years. It has been done by the plaintiff in order to create the illusion of a cause of action and try to cover the period of limitation by means of clever drafting which is not permissible in view of the settled law..."
Similar was observed by the Hon'ble High Court of Delhi in Mukhinder Singh vs. Gurbux Singh & Ors RAF No. 337/2010 date of decision on 02.02.2012, ILR(2012) IV Delhi 578. The relevant paras are quoted here as under for the sake of clarity: "...15. The next main issue which was argued before this Court was with respect to whether the suit was barred by time. Related to this issue is the issue as to whether a suit for possession could be filed in the year 1975 without first seeking cancellation of the sale deed executed way back on 3.12.1960 by the society in favour of the defendant no.1/respondent no.1. This subject will also cover the issue of whether there is any fraud or collusion in getting the sale deed dated 3.12.1960 executed by the society in favour of defendant no.1/respondent no.1. An ownership of a property is transferred by means of a registered sale deed as per Section 54 of the Transfer of Property Act, 1882. Every sale deed has an effect of divesting the transferor of the ownership of the property and the vesting of the ownership in the transferee. A sale deed by which the ownership rights in an immovable property are transferred can be ignored only under two circumstances. Firstly, if the sale deed is a nominal transaction or a paper transaction because the parties intended it to be so or secondly, if the document being the sale deed is void ab initio. It is in these two circumstances that it is not necessary to have the sale deed set aside inasmuch as the sale deed cannot have the effect of transferringownership. However, in all other cases where it is pleaded that sale deed is a voidable document because it ought not to have been executed or there is a fraudulent transfer of title by means of the particular sale deed or for anyreason which makes the transfer voidable (and not void), it is necessary that a suit has to be filed for cancellation of such a sale deed within a period of three years from the date a person comes to know of execution and existence of the sale deed which goes against the interest of such person. This is the mandate of Article 59 of the Limitation Act, 1963.
16. In the facts of the present case, in my opinion, the knowledge of the appellants/plaintiffs and their predecessorin interest, Sardar Sohan Singh of the existence of the sale deed dated 3.12.1960 is actually from 1960 itself. This knowledge of the appellants/plaintiffs and their predecessorin interest Sardar Sohan Singh is from the year 1960 itself is a knowledge which is both actual/factual knowledge as also deemed knowledge. The knowledge is an actual knowledge inasmuch as in the cross examination of the late plaintiff no.1 conducted on 8.8.1990, the plaintiff No.1 specifically admitted that the appellants/plaintiffs and Sardar Sohan Singh came to know of the fraud in the year 1960 itself. In my opinion, this is a vital admission showing knowledge and existence of sale deed dated 3.12.1960 from the year 1960 itself.
Besides this categorical admission, I would like to refer to Section 3 of the Transfer of Property Act, 1882 and which provides that when "a person is said to have notice". As per this definitional clause in Section 3 of the Transfer of Property Act, 1882, a person is said to have a notice of a fact when he actually knows that fact, or when, but for wilful abstention from an enquiry or search which he ought to have made, or gross negligence, he would have known it. Explanation 1 to this definitional clause provides that where there is a transaction related to immovable property by a registered instrument, then acquiring of interest in such property shall be known to the world at large by means of a deemed notice on the registration of such instrument before the subRegistrar. In my opinion, if the appellants/plaintiffs have only conveniently contended that they came to know of the sale deed in the year 1963, because if knowledge of the sale deed of 1960 is only conveniently alleged of 1963 then, why not in 1964 or why not in 1965 or why not in 1966 and so on. Obviously, the date given of the year 1963 is a conjured date and was thus shown to be false by the admission made by Sh. Mukhinder Singh/plaintiff no.1 in his cross examination dated 8.8.1990. Also, on registration of the sale deed dated 3.12.1960, the appellants/plaintiffs and Sardar Sohan Singh in accordance with Section 3 of Transfer of Property Act, 1882 were deemed to have notice of the fact that the sale deed was actually executed. The plaintiffs or Sardar Sohan Singh but for wilful abstention of making an enquiry, they ought to have made, would have come to know of the execution of the sale deed within at best a few months or a year thereafter. I therefore hold that in fact, the suit of the appellants/plaintiffs, even if the present suit was one for cancellation of the sale deed dated 3.12.1960, would have become barred by 1963, or at best by 1965/1966 even if we take the knowledge from the year 1963 as pleaded by the appellants/plaintiffs. Once, there cannot be cancellation of the sale deed, the ownership of the defendant no.1/respondent no.1 becomes final and also the disentitlement of the appellants/plaintiff to the reliefs claimed in the suit of possession and mesne profits.
17. The Supreme Court in the judgment reported as Prem Singh vs. Birbal 2006 (5) SCC 353 has held that Article 59 applies to voidable transactions and not void transactions.
Therefore, the allegedly voidable sale deed dated 3.12.1960 (having been executed by the society, and not being challenged by the society) has the conclusive effect of transfer of title in favour of defendant No.1/respondent No.1 since the same was not challenged within a period of 3 years under Article 59. The effect therefore is of barring the plaintiffs from challenging the sale deed 3 years after the knowledge was derived by the appellants/plaintiffs of the sale deed. Though, the defendant no.1/respondent no.1 claims that the appellants came to know of the sale deed in the year 1960 itself, however, even if we take the knowledge of the appellants of the sale deed in the year 1963 as per the admitted case, the challenge to the sale deed for the same to be cancelled becomes barred by limitation at the end of the year 1965 or at best in the year 1966. The subject suit was filed in the year 1975 and even in the subject suit no relief was sought for cancellation of the sale deed dated 3.12.1960. If no challenge is laid, and no relief is claimed, surely, the Court cannot grant such relief which legally is barred, and once no such relief can be claimed or granted, and thus the sale deed dated 3.12.1960 stands, surely title/ownership of the suit property would be of the defendant no.1/respondent no.1. This is because it cannot be that a sale deed of a property can exist by which title is of the defendant no.1/respondent no.1 in law (and hence he is the owner), yet, someone else can claim an ownership and claim possession of the property. Since the appellants/plaintiffs were in fact wellaware that a challenge if laid by the subject suit to the sale deed then the same would be held to be barred under Article 59 of the Limitation Act, 1963, therefore they filed a simplicitor suit seeking only the reliefs of possession and mesne profits without asking for cancellation of the sale deed dated 3.12.1960 on the grounds/facts which were pleaded in the plaint itself. When we read the plaint, no manner of doubt is left that in fact, the sale deed is also being challenged as being fraud and collusive. Since no specific prayer seeking cancellation of the sale deed is asked for, ownership will continue in law to be vested with the defendant no.1/respondent no.1, and if ownership continues to be vested with defendant no.1/respondent no.1, surely the right to possession fails. I therefore hold that the subject suit for possession was not maintainable because the right to seek cancellation of the sale deed had become barred by time at the maximum in around the year 1965/1966, and therefore, no relief can be granted in a suit filed in the year 1975 for cancellation of the sale deed. At the cost of repetition it is stated that if the sale deed stands, ownership of the defendant no.1/respondent no.1 stands, and if the ownership of the defendant no.1/respondent no.1 stands, appellants/plaintiffs are not entitled to the reliefs of possession and mesne profits as claimed with respect to the suit property..." (underline added) From the abovequoted observations as made in the judgment Raj Kumari (supra) and Mukhinder Singh (supra), it is clear that if there are documents w.r.t the suit property in existence then without seeking the relief of cancellation of those documents, the suit for mere possession is not maintainable.
It is further pertinent to highlight that there is no cogent documentary evidence to show the possession of present plaintiff or M/s Rooprani Charitable Trust over the suit property at any point of time. In fact it is deposed by PW7 himself that a report of local commissioner was called in the other connected suit no.79/1990 in respect of the status of the possession of suit property wherein he reported some inventory of some articles found in the suit property which were not having, any mark of belonging to M/s Rooprani Charitable Trust and said report was made in the year 1990 which further casts a dark cloud as to whether M/s Rooprani Charitable Trust was in possession in the year 1990 over the suit property because according to the averment of the present plaint, the said trust became absolute owner of suit property on 18.11.1988 i.e. after death of Smt. Jaswanti Devi.
Hence, in view of the aforesaid discussions, glaring deficiencies in respect of the existence of valid and lawful trust and its ownership over the suit property thereby creating a dark cloud over the valid transfer of suit property to plaintiff, the plaintiff cannot be held entitled to decree for possession in the suit property.
This issues is accordingly decided against the plaintiff.
9. ISSUE NO.1 - Whether the suit is liable to be stayed U/S 10 of CPC? OPD.
The onus to prove this issue was upon the defendants.
It is pertinent to mention here that said issue was treated as preliminary issue and has already been decided vide order dt.04/05/1998 against the defendants.
10. ISSUE NO.2 - Whether the suit is bad for misjoinder and nonjoinder of necessary parties? OPD.
The onus to prove this issue was upon the defendants. No direct and cogent evidence whatsoever has been led by the defendants in the matter to prove or to show that the suit filed by the plaintiff is bad for misjoinder and nonjoinder of necessary parties. Hence, because of absence of any evidence led by the defendants to prove this issue, the issue is decided accordingly against the defendants.
11. ISSUE NO.3 - Whether the suit has been properly valued for the purposes of court fee and jurisdiction? OPP The onus to prove this issue was upon the plaintiff. Perusal of the present plaint shows that the plaintiff has valued the suit at Rs.1,10,000/ upon which the appropriate court fees has been paid as per rules. Though, the defendant raised an issue regarding the improper valuation in his WS but no evidence whatsoever has been led to controvert or rebut this averment. In fact not even a suggestion was given to PW7 during his crossexamination to dispute valuation done by the plaintiff in the present suit for the purposes of court fees and jurisdiction.
Hence, there is no justified ground made out to dispute the valuation mentioned by the plaintiff in the plaint. Accordingly, this issue is decided in favour of the plaintiff.
12. ISSUE NO.5 RELIEF In view of the findings given on issues no.1 & 4 documents placed on record, pleadings of the parties and evidence led by the parties, the plaintiff has failed to prove her case on the scale of preponderance of probabilities. Accordingly, suit of the plaintiff is dismissed.
Decree sheet be prepared accordingly. File be consigned to record room after completing the necessary formalities.
(SANDEEP GUPTA) Civil Judge (West)2, Delhi Pronounced in the open court on 25/01/2017.
SUIT NO.607110/16Date:25/01/17 Present: Sh. Anil Kumar Moria, AR of the plaintiff.
Defendant in person.
Vide separate judgment announced in the open court today, the suit of the plaintiff is dismissed.
Decree sheet be prepared accordingly. File be consigned to record room after completing the necessary formalities.
Sandeep Gupta C.J. Delhi (West)2 dt.25/01/17