Full Text
IA No.14811/2009 in CS(OS) NO.1783/2009
Date of Decision: 24.12.2010
SARDAR JASWANT SINGH NARANG & ANR. ……Plaintiffs
Through: Mr. S.C.Singhal, Advocate.
Through: Mr. K.N.Popli, Advocate
JUDGMENT
1. Whether Reporters of local papers may be allowed to see the judgment? YES
2. To be referred to the Reporter or not ? NO
3. Whether the judgment should be reported in the Digest ? NO V.K. SHALI, J. IA No.14811/2009
1. This order shall dispose of an application bearing IA No.14811/2009 under Order 7 Rule 11 CPC filed by the defendants.
2. Briefly stated that facts of the case are that the plaintiffs have filed a suit for declaration, partition and mandatory injunction against the defendants. It is alleged in the plaint that the defendants, who are related to the plaintiffs, have purchased a plot of land from one Mr. Ajinder Pal Singh by an agreement to sell dated 31.12.1979. It is further alleged that after getting the plan sanctioned from MCD, a structure 2010:DHC:6297 was raised on the said piece of land and the defendants vide agreement dated 04.07.1985 gave the first floor of the said premises for the use and occupation to the plaintiffs on payment of `1 lakh as security deposit.
3. It was laid down in the said agreement that the aforesaid amount of `1 lakh would continue to be with the defendants so long as the plaintiff continues to be in occupation of the first floor of the suit premises. It was also envisaged that as and when the plaintiff would vacate and hand over the peaceful and vacant possession of the first floor to the defendants, they would refund the aforesaid amount of `1 lakh to the plaintiff.
4. One of the important terms and conditions in the agreement was that in case, during the period of occupancy, the plaintiffs decided to purchase ½ share of the right, title or interest in the aforesaid plot of land and the building thereon then the amount of `1 lakh shall be treated as a consideration of payment by the plaintiffs to the defendants of his share towards the purchase amount and the plaintiffs shall be treated as a co-owners of ½ share of the suit property. Relevant clause reads as under:- “During the period of occupancy if the party of the other part decided to purchase ½ share rights, title and interest in the aforesaid plot of land and the building thereon the party of the one part, is under an obligation to make her as equal co-owner of entire property and the security deposit of `1,00,000/- shall be treated as a consideration of such a case, the parties hereto shall join in making an application to Delhi Municipal Corporation for transfer of lease in their joint names”
5. It is on the basis of this clause, the plaintiffs have alleged that they are the co-owners/co-sharers to the extent of ½ share and since the defendants had denied and cast a cloud on the right of the plaintiff, he came to issue a notice dated 06.08.2009 to the defendants that they must perfect the title of the plaintiffs and for this purpose, get the property converted into freehold and do all the other necessary acts in this regard.
6. The reply to this notice was given on 29.8.2009 by the defendants denying the claim of the plaintiffs and taking the plea that the plaintiffs were only licencee and there was no agreement to sell the first floor. In addition to this, amount of `1 lakh is stated to have been refunded to the plaintiff vide a cheque which was not encashed.
7. After the pleadings in the matter were completed, the defendants filed the aforesaid application for rejection of the plaint on the ground that there is no cause of action in favour of the plaintiff to file the present suit. Secondly, the suit is barred by time as the limitation under Article 58 of the Limitation Act. It is alleged by the defendants that the period of limitation of three years is to be reckoned w.e.f. 31.12.1979 and in any case it is to be reckoned w.e.f. 04.07.1985 when the agreement is purported to have been executed and therefore, the period having started long back, the present suit for declaration by the plaintiffs has been filed after expiry of 30 years from the date of Agreement by the defendants and 24 years after the date of execution of the agreement dated 04.07.1985 is hopelessly barred by time.
8. The third preliminary objection, which was taken by the defendants was that the suit of the plaintiff is also barred by Benami Transactions (Prohibition) Act, 1988 and therefore, the plaint be rejected.
9. Reply to the application has been filed by the plaintiff who has contested the claim of the defendants. He has also denied the averments made by the defendants that the suit is barred by time or Benami Transactions (Prohibition) Act,
1988.
10. I have heard the learned counsel for the parties and perused the record.
11. The first question which is being raised for consideration is whether the suit of the plaintiff is barred by time or not.
12. There is no dispute about the fact that Article 58 of the Schedule part 3 deals with the suit relating to declarations. It lays down the period of limitation as three years from the date when the right to sue accrues. The residuary clause under Article 113 which is part X provides for the period of limitation for suits for which there is no prescribed period specified. It also lays down a period of limitation of three years from the date when the right to sue accrues. Therefore, irrespective of going into the specific Article under which the present suit falls, there is no denial of the fact that the period of limitation is three years when the right to sue first accrued in a suit for declaration. The plaintiffs in their plaint in para 19 have specifically stated that the cause of action arose to the plaintiffs on the notice being served dated 06.08.2009, when he requested the defendants to perfect his title in terms of agreement dated 04.07.1985.
13. The law regarding Order 7 Rule 11 CPC is very clear that while deciding the question of rejection of plaint, what is to be seen are the averments made by the plaintiffs in the plaint and not the defence which is taken by the defendants or the averments made by the defendants in their pleadings. Therefore, it is not open to the defendants to contend that the suit of the plaintiffs ought to have been filed immediately when the agreement dated 04.07.1985 was executed or to say that the suit is hopelessly barred by time because it has been filed after 30 years from the date of purchase of the suit property and 24 years from the date of entering into the agreement. But that was not the date on which the cause of action accrued to the plaintiffs. There is no dispute about the fact that the suit property was purchased originally by the defendants from one Sh. Ajinder Pal Singh and it was thereafter built upon. The plaintiff came into picture only by virtue of the agreement dated 04.07.1985 when he was put into possession of the suit property on payment of `1 lakh as a security deposit with the defendants
14. The terms and conditions of the security deposited are enunciated in detail in the agreement itself, but the agreement also lays down that if at any point of time while the plaintiffs are in occupation of the suit premises, if they exercise their right to become the co-owners of the suit property then the aforesaid amount of `1 lakh shall be treated as a sale consideration on their behalf to the defendants.
15. Therefore, it is in this context that the defendants have alleged to have cast a cloud on the right of the plaintiff for which a notice dated 06.08.2009 came to be issued. Therefore, the earliest point of time when the cause of action accrued to the plaintiff was only on 6.8.2009 and it is from this date the period of limitation has to be reckoned and therefore, the suit of the plaintiff cannot be said to be barred by time. It may be pertinent here to refer to the averments made by the defendant himself who has stated that he had sent a cheque of `1 lakh deposited with him to the plaintiffs on 29.08.2009 drawn on State Bank of India, Azadpur Branch which was not encashed by the plaintiff. This refund of cheque of `1 lakh is admittedly after the notice dated 06.08.2009 having been issued to the defendants which clearly shows that the plaintiff continued to be in occupation and the amount of `1 lakh which was to be treated as a purchase amount continued to be with the defendants during all this period. Therefore, it cannot be said that the suit of the plaintiffs is prima facie barred by limitation as is sought to be urged by the defendants. Accordingly, the plea of the defendants in this regard is rejected.
16. So far as the plea of the defendants with regard to the cause of action is concerned, the suit cannot be said to be without any cause of action and liable to be rejected under Order 7 Rule 11(a) CPC. The entire reading of the plaint has given the sequence of events and the plaintiffs has specifically stated that he issued a notice dated 06.08.2009 to the defendants to perfect his title and therefore, the defendants having failed to do so, he chose to file the present suit for declaration with the consequential reliefs. It can by no stretch of imagination be said that the suit is without any cause of action, therefore, this plea of the defendants is also without any merit.
17. Lastly, we are left with the plea under the Benami Transactions (Prohibition) Act, 1988 hereinafter referred to as ‘Act’) as has been raised by the defendant. It is the case of the defendant that even if it is assumed that the plaintiff had paid a sum of `1 lakh to the defendants towards the part of the sale consideration for which the suit land was purchased or the suit property was built but the property having been purchased in the name of the defendants by an agreement to sell is actually the property of the defendants and it cannot be treated to be property of the plaintiffs because it becomes at best ½ share of the defendants by way of Benami property, which is hit by Section 3 of the Benami Transactions (Prohibition) Act, 1988.
18. I have considered this submission of the defendant.
19. Admittedly, the title of the defendants in respect of the suit property is not complete, the defendants only have in their favour an agreement to sell. The property has been purchased in the year 1979 and the plaintiff has been put into possession by virtue of agreement dated 04.07.1985 when he paid a sum of `1 lakh to the defendants by way of security deposit. Therefore, it cannot be said that this amount of `1 lakh was paid to the defendant at the time of purchase of the plot of land. In any case, since the title of the defendants themselves is not perfect, it is not open to the defendant to contend that the provisions of the ‘Act’ would be applicable qua the plaintiff, so far as the suit property is concerned. Therefore, this plea of the defendants also does not have any merit.
20. In any case, all these pleas which have been raised by the defendants in his written statement are pleas of mixed question of law and fact and they can be decided only after the parties are permitted to adduce their respective evidence.
21. I accordingly, dismiss the application of the defendants under Order 7 Rule 11 CPC as being misconceived. No order as to costs.
22. Expression of any opinion hereinbefore may not be treated as an expression on the merits of the case.
23. List before the Joint Registrar for further proceedings on 7.2.2011. V.K. SHALI, J. DECEMBER 24, 2010 RN