FA/98/2012 of SMT. SUDHA AGARWAL and ANR. Vs KARANJEET SINGH and ORS.

RESERVED JUDGMENT

IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL

First Appeal No. 98/2012

1. Smt. Sudha Agarwal,

wife of late Sri Satya Prakash Agarwal,

resident of Sister Bazar, Landour Cantt.,

Mussoorie, District Dehradun.

2. Miss Parul Prakash Agarwal, daughter of late Sri Satya Prakash Agarwal, resident of Sister Bazar, Landour Cantt., Mussoorie, District Dehradun. daughter of late Sri Satya Prakash Agarwal, resident of Sister Bazar, Landour Cantt., Mussoorie, District Dehradun.

….. Plaintiffs/Appellants

Versus

1. Sri Karanjeet Singh, son of Sri S.P. Singh, resident of 67-B, Rajguru, Ludhiana. son of Sri S.P. Singh, resident of 67-B, Rajguru, Ludhiana.

2. Church of the Brethren General Board 1451 Dundee Ave, Elgin, H, 60120-4694, through Mr. Stanley. J. Noffsinger, son of Mr. Ross Noffsinger, resident of 1451 Dundee Ave, Elgin, H, 60120-4694. 1451 Dundee Ave, Elgin, H, 60120-4694, through Mr. Stanley. J. Noffsinger, son of Mr. Ross Noffsinger, resident of 1451 Dundee Ave, Elgin, H, 60120-4694.

3. Mr. Peter Succoro Vaz, son of late Sri Diogo Vaz, resident of H. No. 13-241 LD, Bunglow No. D, Models Meridan, Marine Road, Caranzalen Ilas, Goa. son of late Sri Diogo Vaz, resident of H. No. 13-241 LD, Bunglow No. D, Models Meridan, Marine Road, Caranzalen Ilas, Goa.

….Defendants/Respondents

September 12, 2014

Hon’ble Servesh Kumar Gupta, J.

By way of this appeal, the judgment and order dated 13.8.2012, rendered by Civil Judge (Sr. Div.), Dehradun in Original Suit No. 641/2005, has been challenged, whereby in the above suit launched by the plaintiffs/appellants herein they were non-suited under Order VII Rule 11 (d) of the Civil Procedure Code. The plaint was rejected finding the same time-barred under Article 58 of the Limitation Act, 1963.

2. In the said suit, the plaintiffs sought declaration of their title over the property in question as well as the cancellation of the sale deed dated 7.11.2000 regarding the same property executed by Church, the defendant no. 2, in favour of Karanjeet Singh, defendant no. 1. The said suit was instituted on 31.10.2005 by the plaintiffs against Mr. Karanjeet Singh, defendant no. 1, Church, defendant no. 2 and Mr. Peter Succoro, defendant no. 3. Written statement was filed by defendant no. 3 with the averments that the said suit was barred by time limitation as prescribed under Article 58 of the Act. So, inter alia, an issue no. 5 was framed to this effect and after hearing both the parties on merits, the learned Trial Court rejected the plaint as stated hereinabove by way of passing the impugned judgment, whereagainst this appeal has been filed.

3. Before entering into the real controversy between the parties, brief description of the facts existing herein are relevant to find place, which are as under.

4. The property is situated in the shape of bungalow including outhouses bearing Survey No. 143, Class B-3 at Landour in District Dehradun. As per the averments of the plaintiffs in the suit, originally it was in the ownership of the Church, but under unregistered agreement to sell dated 7.3.1974, the Church sold its property to Satya Prakash Agarwal, the predecessor in interest of the plaintiffs, with the delivery of possession of the same. So, the part of the property was given under tenancy to one Mrs. D. Japata. In the course of time, Mr. Satya Prakash Agarwal filed the S.C.C. Suit No. 7/1995 in the Court of Judge, Small Causes Court

against the tenant Mrs. Japata seeking her eviction from the same. During the tenancy of that S.C.C. Suit, the property was purchased by Karanjeet Singh, the defendant no. 1, from the Church by way of execution of sale deed in his favour on dated 7.11.2000 and the same was registered in the office of Sub Registrar on 25.4.2001. Meanwhile, it had come to his notice that S.C.C. Suit was being proceeded by one Mr. Satya Prakash Agarwal against Mrs. Japata. So, he moved an application under Order I Rule 10 of Civil Procedure Code sometime after execution of the sale deed in his favour seeking his impleadment as necessary party in the said suit and that application was allowed by the Judge, Small Causes Court on 31.5.2001. Although Mr. Satya Prakash Agarwal or his successors resisted that application of Mr. Karanjeet Singh tooth and nail, but it was allowed by way of passing detailed order Annexure No. 4. revision against that impleadment was filed in the High Court and it was also dismissed on merits. Then S.L.P. was filed by the successors of Mr. Agarwal and during the course of arguments it was disclosed by learned Counsel of the defendants that the S.L.P. has also been dismissed on 3.8.2012 by the Hon’ble Apex Court.

5. Meanwhile, certain other significant facts also happened and those are that Mr. Agarwal or his successors filed an Original Suit No. 221/2001 on 23.3.2001 seeking specific performance of contract of that unregistered agreement to sell dated 7.3.1974 in the Court of Civil Judge, Sr. Division, only against the Church and got that ex parte decreed against the Church on 23.4.2005, in pursuance whereof sale deed was got executed on 7.10.2005 in favour of plaintiffs/appellants. The said sale deed was executed

by Mr. Atul Virmani, an Advocate at Dehradun, posing himself as the power of attorney of one Mr. Stanley on behalf of the Church. Here it would be pertinent to mention that no designation of Stanley has been mentioned in that sale deed or elsewhere to disclose the authority of Mr. Stanley vis-à-vis to the execution of power of attorney or the sale deed regarding the property of the Church. Even step ahead after execution of such sale deed, the Court executing such decree was informed by the judgment debtor in the same manner regarding the satisfaction of that decree. After this sale deed dated 7.10.2005, questioned Original Suit No. 641/2005 was instituted by Mr. Satya Prakash Agarwal seeking the reliefs as have been aforementioned, wherein the impugned judgment was passed rejecting the plaint as stated above.

6. During the pendency of this Original Suit No. 641/2005, the property in question was sold by Karanjeet Singh, defendant no. 1, to Peter Succoro, defendant no. 3, by way of executing registered sale deed on 9.3.2009. So, Mr. Peter was now impleaded as the defendant/respondent and thus, the defendant no. 1 and 2 had lost their interest at all from the property in question and the actual fray remained only between the plaintiffs/appellants and the defendant no. 3 Mr. Peter Succoro.

7. The only crucial legal question between the parties is whether the suit was barred by the time limitation of three years as has been envisaged under Article 58 of the Limitation Act, which contemplates the time limitation of three years to obtain any other declaration and this time shall start to run when the right to sue first accrues.

8. It was pleaded by the plaintiffs that right to sue first accrued on three dates i.e. 7.3.1974 when there was alleged unregistered agreement to sell of the property by the Church to Mr. Satya Prakash Agarwal; on 7.11.2000 when the sale deed was executed by the Church in favour of Karanjeet Singh, and thirdly on 7.10.2005 when the sale deed was got executed by the power of attorney of Mr. Stanley in favour of Mr. Satya Prakash Agarwal conferring the valid title on him or his successors.

9. If the right to sue had been accrued first on 7.3.1974, then the plaintiffs have utterly failed to explain as to how and why he instituted an Original Suit No. 221/2001 as many as after 26 years of that unregistered agreement to sell seeking specific performance of that agreement. Since his suit was apparently time-barred, so he chose not to make proper person Mr. Karanjeet the party who could have resisted his specific performance suit. It was incumbent upon Mr. Satya Prakash Agarwal to make Mr. Karanjeet as necessary party in that Original Suit No. 221/2001 because he had come to know that this property in question has been sold by the Church to Mr. Karanjeet Singh on dated 7.11.2000. He cannot claim his ignorance from this fact because Mr. Karanjeet soon after the purchase of the said property from the Church moved an application under Order I Rule 10 of the Civil Procedure Code seeking his impleadment in the S.C.C. Suit No. 7/1995 launched by Mr. Satya Prakash Agarwal against Mrs. Japata. Choosing not to make the proper opponent as party by itself is sufficient to infer the concealment of true facts on the part of Mr. Agarwal from the Court and thus, managed to get the ex parte decree against the Church on 23.4.2005. This ex parte

decree is full of foul smell because the Church did not oppose in the written statement filed through the power of attorney, which again by itself doubtful as Mr. Stanley has nowhere disclosed his authority over and above the Church and its properties to grant all the rights to Mr. Atul Virmani, local Advocate at Dehradun. The real Church, defendant no. 2, did not in fact contest that Original Suit No. 221/2001 and it is more explicable for the reason that why it did not come forward to contest the Original Suit No. 221/2001, and an application was moved before executing court informing regarding satisfaction of that ex parte decree as argued by the learned Counsel of the plaintiffs. So, this ex parte decree dated 23.4.2005 is completely shrouded with doubts and the concealment of the true facts from the Court which granted this ex parte decree.10. The argument of the learned Counsel that he is entitled to seek the benefit of Section 14 of the Limitation Act is not acceptable at all and the reason has well been discussed even in the impugned judgment by citing number of judgments of the Hon’ble Apex Court because that benefit is available only when the suit was filed in Court having no jurisdiction, and the plaint is returned; then the period reckoned from the wrong filing till the date of return of the plaint is excluded from the period prescribed under the limitation, but this is not the case here. Simply for the reason that he resisted the application of Mr. Karanjeet Singh under Order I Rule 10 of the Civil Procedure Code questioning the sale deed in his favour dated 7.11.2000, so the period of pendency of that application in the litigation in the hierarchy of system should be excluded, applicability of Section 14 of the Limitation Act cannot be evoked.

11. The above argument is wholly untenable because it is the settled law that the Court of Judge, Small Causes has no jurisdiction to decide the title over the property. So, when he instituted the Suit No. 221/2001 for the specific performance, then it was mandatory on him to implead Mr. Karanjeet Singh as necessary party because confrontation had been started between him and Karanjeet Singh over the property in question. So, the cause of action had been commenced on 7.11.2000 and he had full knowledge about the same, as also has been pleaded in the plaint, then what was the reason for Mr. Satya Prakash Agarwal to keep Mr. Karanjeet Singh out from the Suit No. 221/2001, which was got decided ex parte in his favour.

12. As regards the third date 7.10.2005, pleading the cause of action from that date is also not acceptable because his title could not be declared over the property until and unless the sale deed executed by the Church in favour of Karanjeet Singh on dated 7.11.2000 is cancelled. The obvious reason that Mr. Satya Prakash Agarwal deliberately did not make Mr. Karanjeet Singh party in the Original Suit No. 221/2001 because he knew that Mr. Karanjeet was the real opponent to fight the Original Suit No. 221/2001. If he is impleaded as defendant, his Original Suit could never have been decreed. Although this Court does not want to make any comment on the genuineness of the sale deed executed by the Church in favour of Karanjeet Singh dated 7.11.2000 at this stage, but on apparent look, it is obvious that the same was executed by Mr. Steve Scot, the Secretary of the Church in his favour.

13. Learned Counsel of the appellants has cited three precedents, which are as under:

(i) Surjit Kaur Gill v. Adarsh Kaur Gill, reported in (Civil Appeal No. 8221/2011, decided by the Hon’ble Apex Court on 30.1.2014).

(ii) Ram Prakash Gupta v. Rajiv Kumar Gupta

& Others, reported in (2007) 10 SCC 59.

(iii) C. Natrajan v. Ashim Bai & Another, reported in (2007) 14 SCC 183.

14. On the other hand, learned Counsel of the defendants has also cited following precedents:

(i) Swami Sadguru Sharnanand Ji Mahraj v. Hari Kumar, reported in (2013) 8. ADJ 482.

(ii) Tumu Srihari v. Thumu Padmamma, reported in (2011) 3 ALD 168.

(iii) Chethan Bhandary v. M/s Kotak Securities Ltd. & Others, reported in (2010) 5 KarL.J. 43.

(iv) Shiv Shiv Tewari v. Ganesh Prasad Misra, reported in (1978) 0 AIR (All) 117.

(v) Khatri Hotels Private Limited & Another v. Union of India & Another, reported in (2011) 9 SCC 126.

(vi) N.V. Srinivasa Murthy & Others v. Mariyamma & Others, reported in (2005) 5 SCC 548.

15. I have gone through all the laws laid down by the Hon’ble Apex Court and different High Courts from time to time and also find that number of precedents have been relied and cited by the Court below in the impugned judgment, but the crux is the same. The plaint can be saved from the scope of Order VII Rule 11 of the Civil Procedure Code only when the bar of limitation is to be determined on the question of facts inherent between the parties, but where the facts are clear and not subject to any disclosure during course of evidence, then law is to be implemented as it exists

howsoever harsh it may be. Otherwise, enactment of the law of limitation by the Parliament is of no avail.

16. It is also pertinent to mention that as regards the possession over the property in question, the learned Civil Judge, Sr. Division, in the order dated 31.5.2001 allowing the impleadment application of Mr. Karamjeet, has observed as under. The excerpts follows:

“It is also alleged that the plaintiff has claimed possession over the disputed land in part performance of the agreement but no such agreement was made available on file. Perusal of the file reveals that no such agreement is on file. It is also not disputed that the third party applicant Karanjeet Singh is in possession of the part of land except the tenanted one which negatives the claim of the plaintiff having received the possession in part performance of the agreement.”

17. It is further observed by the Court below that “Here in this case the plaintiff (Mr. Agrwal) admits that third party Sri Karanjeet Singh is in occupation of the part of the land.” So, it is crystal clear that Mr. Agarwal or his family were not in possession at all.

18. It will be relevant to mention the provisions of Order VII Rule 6 of the Civil Procedure Code, which adumbrates that where the benefit of Section 14 of the Limitation Act is being claimed, then the plaintiff will have to admit that his suit is time-barred.

19. The plaintiffs have nowhere pleaded that the benefit of Section 14 of the Limitation Act be granted to them being their suit time-barred. So, the argument of

learned Counsel on behalf of the plaintiffs/appellants is totally misconceived.

20. As regards the extension of the prescribed period of three years in launching the litigation in the Court, Section 5 of the Limitation Act is also relevant to be noted here, which is as under:

“5. Extension of prescribed period in

certain cases.—Any appeal or any application, other than an application under any of the provisions of Order XXI of the Code of Civil Procedure, 1908 (5 of 1908), may be admitted after the prescribed period, if the appellant or the applicant satisfies the court that he had sufficient cause for not preferring the appeal or making the application within such period.”

21. The above provision contemplates the extension of the prescribed period only for the appeals and the applications other than an application under any of the provisions of the Order XXI of the Civil Procedure Code. It does not talk about the extension of the time limitation for the purpose of institution of the suit and for the sake of exclusion of the time under Section 14 of the Act is concerned, it has to be read with the Order XII Rule 6 of the Civil Procedure Code as has been highlighted hereinabove.

22. All told, I find that the learned Trial Judge has passed an elaborate impugned judgment discussing entire pros and cons with the citations of number of judgments of the Hon’ble Apex Court. It has dealt each and every aspect regarding the merits of the time limitation for and against the parties and I have not been persuaded to take different view than has been

taken by the learned Trial Judge by way of passing the impugned judgment.

23. The appeal has thus no merit. It is hereby dismissed. Let the lower court record be sent back.

Prabodh

(Servesh Kumar Gupta, J.)