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TMI Blog2017 (1) TMI 1710X X X X Extracts X X X X X X X X Extracts X X X X ..... 32, 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 allotment of any property; (viii) that Shri Diwan Chand Sharma died intestate in January, 1977 and his wife also died intestate in March, 1979; (ix) that the father of the plaintiff namely Sh. Keshwa Nand Sharma, by reason of his employment shifted along with his family including the plaintiff to Modi Nagar, Uttar Pradesh; (x) that the father of the plaintiff Shri Keshwa Nand Sharma died on 24th M ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... me 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 of occasions, obtained his signatures on blank sheets claiming that the same were required for the Municipal Property Tax Assessment; (xxv) that the said decree is in violation of Section 23 of the Indian Contract Act, 1872; (xxvi) though the plaintiff and defendants no.4 to 9 protested to the defendants no.1 to 3 but to no avail; (xxvii) Col. Ram Prakash Sharma was not competent to acquire the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... his 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 at Rs. 5,00,00,000/-, paying court fees on his 1/14th share in the property and for the relief of declaration at Rs. 5,00,00,000/- paying fixed court fees of Rs. 19.50 thereon (as per Schedule II (17) of Court Fees Act, 1870) and to separately claim the reliefs of partition and declaration and which amendment was allowed on 21st November, 2016, when after hearing the counsel for the plaintiff and the counsel for the d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... w 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 the year 1969 to which the transaction and decree pertain. It was also so held by the Supreme Court recently in Om Prakash Sharma Vs. Rajendra Prasad Shewda (2015) 15 SCC 556 though in the context of a benami purchase in the name of wife. I may add that it is only on coming into force w.e.f. 19th May, 1988 of the Benami Transactions (Prohibition) Act that the law came to prohibit benami transactions. However the prohibition of benami transact ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ccommodation 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 against the President of India/L&DO and did not compel the President of India and/or L&DO to in their records so mutate the property. The right if any to object to the decree on such grounds as are urged by plaintiff was of the President of India/L&DO and who admittedly did not object thereto and the plaintiff, after 38/47 years thereof cannot appropriate the said right unto himself. I may in this regard notice that though the plaintiff in this suit h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as 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 State AIR 1963 P&H 255, though in the context of the phrase "at any time‟ in Section 36 of the East Punjab Holdings (Consolidation & Prevention of Fragmentation) Act, 1948 providing for variation of scheme of consolidation which had been confirmed, held that title of a right holder cannot be permitted to be in a perpetual state of flux and instability. It was further held that rights of ownership and possession will become extremely precarious ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 the said ground. 22. However the said right according to the plaintiff accrued to the plaintiff in the year 2007. This suit has been filed on 21st October, 2016. The plaintiff seeks to invoke Section 14 of the Limitation Act for invocation thereof it is necessary for the plaintiff to show that the suit filed by the plaintiff in the year 2007 was instituted and prosecuted with due diligence and in good faith in a Court which from defect of jurisdiction or o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rty 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 plaintiff shows total lack of good faith in prosecuting the suit. A litigant cannot so defeat limitation by placing the blame on the advocate, who is not before the court. It is not the case of the plaintiff that he has protested to the said advocate or took any action. Rather, the plaintiff while filing this suit was not even aware that he was required to invoke Section 14 of the Limitation Act and seems to have been under impression that because liberty had been gr ..... X X X X Extracts X X X X X X X X Extracts X X X X
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