TMI Blog2017 (1) TMI 1710X X X X Extracts X X X X X X X X Extracts X X X X ..... suit for partition was not the owner of the property - eedless to state that till the said decree is set aside, the plaintiff cannot have a cause of action for the relief claimed of partition - The question framed is answered by holding that the plaint does not disclose a cause of action for the relief claimed of partition till the plaintiff gets a decree for declaration as claimed. Whether the plaint discloses any cause of action for the plaintiff to seek the relief of declaration of the decree dated 21st August, 1969 as null and void? - HELD THAT:- The plaintiff has not pleaded any right which Shri Diwan Chand Sharma or the father of the plaintiff exercised as owner of the property since then. The plaintiff and his father were not even in use and enjoyment of the property. The plaintiff also since the demise of his father in the year 1997 acted for the first time only in the year 2007 i.e. after ten years. It is deemed appropriate that titles in immoveable property settled for long should not be permitted to be disturbed on such specious grounds as are urged. The plaintiff, removed by two generations from Shri Diwan Chand Sharma, cannot be permitted to challenge the decree wh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d Forces, Navy and Air Force who had migrated to India on partition of the country and one such colony to be set-up was what is today known as Defence Colony, New Delhi; (iii) that as Shri Diwan Chand Sharma was also a Defence personnel who had migrated from Pakistan, he applied for allotment of a plot in the said colony; (iv) that the Settlement Officer, Ministry of Defence allotted plot no.A-132, Defence Colony, New Delhi ad measuring 216.66 sq. yds. in the colony of Defence Colony to the said Shri Diwan Chand Sharma; (v) that the allotment in favour of Shri Diwan Chand Sharma was on the basis of the eligibility certificate issued by the Re-settlement Section, Ministry of Defence on the basis of his qualification as a Defence personnel and was not a mere general allotment; (vi) Shri Diwan Chand Sharma raised construction on the said plot of land and was residing therein along with his wife and two sons namely Col. Ram Prakash Sharma and Sh. Keshwa Nand Sharma (being the father of the plaintiff); (vii) that though Col. Ram Prakash Sharma being the brother of the father of the plaintiff was also a Defence personnel but was not qualified under the Defence Re-settlement Scheme for al ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Col. Ram Prakash Sharma in suit No.298/1969 of the Court of Sub Judge First Class, Delhi declaring Col. Ram Prakash Sharma to be the beneficial owner of the said property; (xix) on further enquiry it was learnt that Col. Ram Prakash Sharma had filed the said suit for declaration against Shri Diwan Chand Sharma claiming that the property was purchased benami for Col. Ram Prakash Sharma in the name of Shri Diwan Chand Sharma and on Sh. Diwan Chand Sharma not contesting the suit it was decreed within 20 days of filing thereof; (xx) Col. Ram Prakash Sharma was not entitled to allotment from the Ministry of Defence in his own name; (xxi) L DO was not impleaded as defendant to the said suit; (xxii) even though benami transactions were then permitted but Col. Ram Prakash Sharma could not have obtained the decree and the said decree amounts to a fraud on the L DO and is illegal; (xxiii) that the decree was obtained without knowledge, consent and permission of Shri Diwan Chand Sharma and by misrepresenting facts to him and by exercising undue influence; (xxiv) Shri Diwan Chand Sharma also continued to represent that he was the owner and had also said that Col. Ram Prakash Sharma, on number ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Schedule to the Limitation Act, 1963 providing limitation of three years for a suit to set aside a decree, commencing from the date when the facts entitling the plaintiff to have the decree set aside first became known to the plaintiff. 3. The counsel for the plaintiff stated that the plaintiff, immediately on coming to know of the facts in the year 2007, had instituted the suit aforesaid and has filed this suit after withdrawing the earlier suit with liberty to file again. 4. Even if that be so, this suit will still have to be shown to be within limitation. Benefit of the time spent in the earlier suit can be claimed only by invoking Section 14 of the Limitation Act but ingredients whereof were not found to have been pleaded in the plaint or by way of separate application. 5. The counsel for the plaintiff then sought an adjournment to file an application under Section 14 of the Limitation Act. 6. The counsel for the defendants no.1 to 3 also appeared on caveat on 27th October, 2016. 7. The plaintiff thereafter filed IA No.1430/2016 under Section 14 of the Limitation Act, and an application for amendment of the plaint to value the suit for the relief of partition a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... stitution of this suit for partition was not the owner of the property. Needless to state that till the said decree is set aside, the plaintiff cannot have a cause of action for the relief claimed of partition. Thus, the first of the aforesaid questions framed is answered by holding that the plaint does not disclose a cause of action for the relief claimed of partition till the plaintiff gets a decree for declaration as claimed. 11. Now let us see whether the plaint discloses any cause of action for the relief claimed of declaration; in the amended plaint, declaration that the property belongs to estate of Sh. Diwan Chand Sharma by setting aside decree dated 21st August, 1969 as well as other documents fraudulently procured by Col. Ram Prakash Sharma in the form of Will dated 2 nd June, 1969 of Shri Diwan Chand Sharma and alleged undated affidavit of Shri Keshwa Nand Sharma to be null and void is sought. I have perused the plaint to gauge the grounds on which the plaintiff claims the said decree dated 21st August, 1969 to be liable to be set aside and null and void. 12. The plaintiff, in para 29 of the plaint admits that benami transactions were recognised and permitted in th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er of allotment containing the terms and conditions thereof but containing the usual terms only and not any term to invalidate the decree for declaration. There is nothing to show that the allotment of land underneath the property to Shri Diwan Chand Sharma was in settlement of claims for any property left in Pakistan or the nature of any property in Pakistan or that it was a condition of allotment that Shri Diwan Chand Sharma would surrender accommodation in Ambala. Shri Diwan Chand Sharma, in the letter of allotment is described as Hony. Lt.‟ and the subject of the said letter is Allotment of Small Plots in Kilokri Housing Colony for Displaced Defence Services Personnel . It does not follow therefrom that the allottee should have been a defence personnel at time of displacement. Col. Ram Prakash Sharma was also a displaced person and a defence personnel. 15. Moreover the decree dated 21st August, 1969 declaring Col. Ram Prakash Sharma to be the actual owner of the property and Shri Diwan Chand Sharma to be benamidar owner thereof, even if contrary to any terms of allotment of said land furnished a cause of action to the L DO/President of India. The decree was not again ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oercion etc. Supreme Court, in Amteshwar Anand Vs. Virender Mohan Singh (2006) 1 SCC 148 held that there is a presumption that the Court was so satisfied and it is not necessary for Court to in express terms say that it is satisfied that compromise is lawful. Reference may also be made this regard to Hiralal Moolchand Doshi Vs. Barot Raman Lal Ranchhoddas (1993) 2 SCC 458, Suleman Noormohamed Vs. Umarbhai Janubhai (1978) 2 SCC 179 and Nagindas Ramdas Vs. Dalpatram Ichharam (1974) 1 SCC 242. The Court before passing the decree is thus deemed to have not found the agreement between Col. Ram Prakash Sharma on the one hand and Shri Diwan Chand Sharma on the other hand of Shri Diwan Chand Sharma being the benami owner of the property and Col. Ram Prakash Sharma to be the true owner of the property to be unlawful. The said judgment and decree has attained finality and the plaintiff for this reason also does not have a cause of action to challenge the same. 17. There is another aspect of the matter. Titles in immoveable property should not be allowed to remain in a flux or in a fluid state of affairs. The Full Bench of the High Court of Punjab Haryana in Bhikhan Bobla Vs. The Punjab ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... answered by holding that the plaint does not disclose a cause of action for the relief of setting aside of the decree dated 21st August, 1969. 19. That brings me to the last of the aforesaid questions i.e. of whether the relief claimed of declaration is within time. 20. The right to have the decree dated 21st August, 1969 cancelled or set aside was of Shri Diwan Chand Sharma who thereby had been divested of title to property. However Shri Diwan Chand Sharma did not take any steps as aforesaid till his demise on January, 1977. 21. Thereafter the right if any to have the decree set aside was of Shri Keshwa Nand Sharma being the father of the plaintiff and an heir of Shri Diwan Chand Sharma. He also till his demise on 24th March, 1997 did not take any steps for setting aside thereof. It seems highly improbable that both of them were not aware of the decree or of the facts entitling them to have the decree cancelled or set aside. It is the plaintiff who as heir of his father Shri Keshwa Nand Sharma is now seeking cancellation/setting aside of the decree. Be that as it may, the question of limitation would be a mixed question of law and fact and the plaint cannot be rejected on ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rawn the earlier suit with liberty to file afresh in the light of the observations of the learned trial court in its order dated 1 st August, 2011 and also the objections raised by the defendants in their written statement and also the reply to the third amendment application . 25. It is provided in Order 23 Rule 2 CPC and has been held by me in Nutan Tyagi Vs. Nirmala Dabas 232(2016) DLT 60 that a suit even if filed after withdrawing the earlier suit with liberty to sue afresh is a fresh suit for the purposes of limitation. 26. Even if it were to be believed that the Court in which the plaintiff earlier instituted the suit, from defect of jurisdiction, was unable to entertain it, the defendant in its written statement verified on 29th August, 2007 made the plaintiff aware of the said defect. The plaintiff claims to have become further aware of the same from the order dated 1 st August, 2011. The only explanation as to why the plaintiff immediately thereafter not withdraw that suit as ultimately done on 22nd September, 2016 and continued to flog the said suit for nine / five years thereafter is that the plaintiff was acting on advise of his advocate. The said conduct of the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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