Full Text
HIGH COURT OF DELHI
Date of Decision: 17th May, 2024
VIPIN KHANNA
S/o Late Shri D.N. Khanna R/o R-545, New Rajinder Nagar, New Delhi-110060 ..... Plaintiff
Through: Mr. Sambit Nanda and Ms. Samaya Khanna, Advocates.
JUDGMENT
1. SUJOY VEER SURI S/o Shri Ajay Suri New Delhi-110060....Defendant No.1
2. BEJOY VEER SURI S/o Shri Ajay Suri New Delhi-110060....Defendant No.2
3. KIRAN SURI W/o Shri Ajay Suri New Delhi-110060.....Defendant No.3
4. AJAY SURI New Delhi-110060 Defendant No.4 Through: Counsel for defendants. CORAM: HON'BLE MS.
JUSTICE NEENA BANSAL KRISHNA JUDGMENT (oral)
1. A suit for Cancellation, Declaration and Permanent Injunction has been filed on behalf of the plaintiff.
2. It is submitted in the plaint that the family of the plaintiff and defendant enjoyed an extremely close relationship for the last 50 years. They were residing in the neighbourhood of each other in Rajinder Nagar since the year 1964. Shri D.N. Khanna, father of the plaintiff, and defendant No.4 Shri Ajay Suri were known to each other since last 35 years and Shri D.N. Khanna treated defendant No.4 Shri Ajay Suri as his own son and had complete trust in him. Defendant No.3 Smt. Kiran Suri is the wife of defendant No.4 and defendant No.1 and 2 are the sons of defendant No.3 and 4.
3. It is submitted that the plaintiff shifted to U.K. in the year 1979 to pursue his career while his parents continued to reside in Delhi. Sometime, in the year 1987 the plaintiff intended to make an investment in a residential property to ensure that his parents had their own place of residence in Delhi. Defendant No.4 was approached by father of the plaintiff and they agreed for purchase a property jointly by plaintiff and defendant No.4. Defendant No. 4 proposed to purchase the property in the name of his two sons defendant No.1 and 2 (who were minors at that time).
4. Consequently, defendant No.3 (wife of defendant No. 4) representing her minor children (defendant No.1 and 2) entered into an Agreement to Sell dated 12.04.1987 (First ATS) with the erstwhile owners to purchase the suit property bearing No. R-545, New Rajinder Nagar, New Delhi (suit property). The plaintiff himself states that this first ATS was executed only between erstwhile owners of the property and defendant No.1 and 2, through their mother. A supplementary ATS was executed on 03.09.1987 which was necessitated due to the death of one of the erstwhile owners.
5. The sale consideration for the purchase of the property was negotiated at Rs.[9] lakhs. According to the plaintiff, he and defendant No.4 agreed to share the sale consideration equally and plaintiff transferred his share of Rs.4,27,500/- directly to the account of defendant No.4, to be paid to the owners of the suit property.
6. He has further claimed that joint possession of the suit property was taken by the plaintiff and the defendants which remained unchanged since 1987, as the father of the plaintiff continued to reside in the Ground Floor while the defendants remained in possession of the First Floor. Because of the differential in the price of the Ground Floor and the First Floor, it was agreed that the Barsati shall also be in possession of the defendant.
7. The plaintiff submits that his family and that of the defendants continued to share a cordial relationship and stood by each other through the various unfortunate events in the family, which included the demise of the sister of the plaintiff and the murder of his mother in the same property, on 17.03.1999. The defendants extended emotional support to the father of the plaintiff to overcome these tragedies.
8. The defendant No.1 and 2 never questioned the right, title and interest of the father of the plaintiff in the suit property. Shri D.N. Khanna continued to reside on the Ground Floor of the suit premises till his demise on 12.01.2005. Thereafter, the plaintiff wished to sell his share in the suit property, however, defendant No. 4 informed his that the Conveyance Deed could not be executed in respect of the suit property due to some technical issues raised by the L & DO.
9. The plaintiff has asserted that even after the demise of his father, the Ground Floor has always been in his exclusive possession under his lock and key. It is submitted that till about 2020 the relations remained cordial and the plaintiff continued to be in possession. Sometime in the beginning of 2020, plaintiff again conveyed his desire to sell the suit property to the defendants.
10. To his utter shock sometime in November, 2020 one of the brokers informed the plaintiff that the registered Conveyance Deed has already been executed in favour of defendant No.1 and 2, in the year 1998. He then confronted the defendants, but was assured that they have always recognized the plaintiff as the owner of the Ground Floor. The plaintiff further enquired sometime in December, 2020 and January, 2021 from defendant No.4 if he would be willing to buy the 50% share of the plaintiff at market value, but the defendant refused to make any offer. Despite such deceitful conduct of the defendant, the plaintiff again confronted the defendants for execution of the Conveyance Deed, but the defendants were not forthcoming. The plaintiff continued to make requests between 2022 to 2023. Eventually, he filed two RTIs’ dated 28.12.2023 in Land & Building Department, Government of India and DDA but he did not receive any response. Therefore, left with no alternative, he sent a Legal Notice dated 02.01.2024 to which the defendants did not reply despite receipt of the same.
11. The plaintiff eventually came to know on 01.03.2024, after obtaining the Certified copy of the Conveyance Deed, that it had already been executed on 02.06.1998.
12. The plaintiff has claimed that the possession of the suit property always remained with him and he had the electricity and telephone connection from the suit premises and he even paid the House Tax. Hence, he had filed the suit with the following prayers: “(a.) To pass a Decree of DECLARATION declaring that the Conveyance Deed 02.06.1998 executed in favour of Defendant No. 1 and Defendant No. 2 is null and void. (b.) To pass a decree for DECLARATION declaring that the Plaintiff is the owner of the ground floor of the Suit Property along with 50% undivided share in the proportionate land of the Suit Property; (c.) In the alternate to prayer a) and b) pass a Decree of DECLARATION declaring that the Plaintiff has acquired 50% title of the Suit Property by ADVERSE POSSESSION in favour of the Plaintiff and against the Defendants in view of the continuous, settled, undisturbed, public possession of the Plaintiff for over 12 years with respect to the 50% right in the Suit Property bearing No. R-545, New Rajinder Nagar, New Delhi- 110060; (d.) To pass a Decree of PERMANENT INJUNCTION in favour of the Plaintiff and against the Defendants, their servants, agents, legal representatives, nominees, executors, assignees, attorneys, authorized representatives or anybody acting on their behalf, thereby restraining them from selling, alienating, transferring, subletting, creating any third party rights in the Plaintiff’s share of the Suit Property, consisting of the entire ground floor along with 50% undivided share in the Property bearing No. R-545, New Rajinder Nagar, New Delhi-110060; (e.) To award the entire costs of the suit in favour of the Plaintiff and against the Defendants; and Pass any other order (s) which this Hon’ble Court may deem fit and proper in the facts and circumstances of the case in favour of the Plaintiff and against the Defendants” Submissions heard.
13. From the pleadings in plaint, it is evident that the plaintiff had knowledge when the two Agreements to Sell dated 12.04.1987 and 03.09.1987 had been executed, that they were in the name of defendant No.1 and 2 (who were the minors) through their mother. Firstly, it was well within his knowledge way back in 1987 that neither him nor his father was a party to the Agreement to Sell. The plaintiff has claimed is that the plaintiff and defendant No. 3 had entered into an internal Agreement dated 15.03.1998 which allegedly states that the Conveyance Deed would be executed in the name of the plaintiff and defendant Nos. 1 & 2. Though, there is no written document to support his assertions of this alleged Agreement, the best case that can be read in favour of the plaintiff is that he could seek specific performance of such internal arrangement. However, there no averment made by the plaintiff regarding specific performance of this alleged internal arrangement. The internal arrangement as has been pleaded by the plaintiff, perse does not create any right, title or interest in the suit property. Rather, it reflects an admission on the part of the plaintiff that he was aware since beginning i.e. from 1987 that the plaintiff or his father were not a party to the ATS.
14. The second fact which blatantly glares from the plaint is that the alleged 50% of the sale consideration i.e. Rs.4,27,500/- as per his own submissions, were paid to defendant No.4. The alleged part sale consideration was not even paid directly by the plaintiff to the erstwhile owners. Merely by asserting that he had paid 50% of the sale consideration to the defendant no.4, he cannot claim any interest in the suit property.
15. The third glaring fact which emerges from the plaint is that the two Agreement to Sell were shared with him in the year 2005. If not before, at least in 2005 the plaintiff became aware that the ATS and the Supplementary Agreement was between the erstwhile owners and defendant No.1 and 2. Even if it is accepted that the plaintiff was under a false assurance from defendant No.4 that the plaintiff would continue to have 50% share in the suit property, he very well became aware in the year 2005, of the two Agreements to Sell being in the name of defendant No.1&2 and not the plaintiff or his father. Since these Agreements to Sell were in favour of defendant Nos.[1] and 2, and as per the submissions of the plaintiff himself, the Sale Deed would have been executed only in favour of the prospective buyers as mentioned in the ATS. Not only that, despite being aware of the scenario way back in 2005 he has filed the present suit only in March, 2024, which is highly belated and time barred.
16. Fourthly, in paragraph 4(e) the plaint it is mentioned that plaintiff and his father had been informed by defendant No.4 that the Sale Deed would be executed in favour of the plaintiff and defendant No.1 and 2 once the permission is granted by the appropriate Authorities. Even if the contention of the plaintiff is accepted that he honestly believed the assurances of the defendants and came to know about the Conveyance Deed only in November 2020, the fact remains that the plaintiff was aware that the Agreement to Sell had been executed only in favour of defendant No.1 and
2.
17. For the plaintiff to impugn a Conveyance Deed, he has to at least plead that he has a better right, title or interest in the suit property. Considering that the Agreements to Sell were not executed in favour of the plaintiff, the mere assertion of the assurances of defendant No.4 regarding his 50% share would not suffice as a valid cause of action for the present suit.
18. The fifth aspect is that the plaintiff claims to have paid 50% of the sale consideration for the suit property. It is pertinent to note that merely because 50% of the alleged sale consideration had been transferred to defendant No.4 way back in 1998, would not be in itself sufficient to create any right, title or interest in favour of the plaintiff. The plaintiff could, at best, seek recovery of the money paid.
19. The Sixth aspect is that the plaintiff has relied on the telephone connection or the electricity connection is in the name of his father at the address of Suit premises. Admittedly, the plaintiff’s father had been residing in the suit premises since 1987 and merely having telephone or electricity connection, would not confer any ownership on the plaintiff. Likewise, mere payment of House Tax in his own name, cannot and does not under law confer any ownership right on the plaintiff.
20. Lastly, a plea of adverse possession has been taken by the plaintiff. However, to be able to claim title on the basis of adverse possession it has to be open and hostile to the ownership of the defendant. Mere permissive use is not sufficient to claim adverse possession. There is not a single averment in the plaint to show that the possession of the plaintiff or his father was open and hostile to ownership of the defendant.
21. In Ravinder kaur Grewal and anr vs Manjit Kaur and ors, (2019) 8 SCC 729 it was observed that adverse possession requires all the three classic requirements to coexist at the same time, namely, necvi i.e. adequate in continuity, necclam i.e., adequate in publicity and necprecario i.e. adverse to a competitor, in denial of title and his knowledge.
22. Evidently, none of these requirements have been pleaded in the plaint.
23. To conclude, there is no cause of action for Declaration against the Conveyance Deed as null and void, is pleaded in the plaint. The relief of Declaration of Title is only consequential to the former relief. When no cause of action has been disclosed for the first/ primary relief, the consequential reliefs are also not maintainable.
24. The suit is hereby dismissed as not disclosing any cause of action and being hopelessly barred by time. The pending applications are also disposed of.
NEENA BANSAL KRISHNA, J MAY 17, 2024