In the Court of Civil Judge04 (South), Saket Court Complex, New Delhi Presided By : Ms. [ENTITY] Suit no. 31/2010 Unique Case I.D. No. 02406C0314772010 In the matter of : [ENTITY] S/o Late Sh. Nawab Singh R/o C3/3160, Vasant Kunj New Delhi110070 Plaintiff Versus 1. [ENTITY] W/o Sh. Om Prakash Singh R/o Piagu Road, Near Water Tank Sirsaganj, Distt. Firozabad, Uttar Pradesh 2. [ENTITY] Estranged Wife of [ENTITY] R/o C3/3162, Vasant Kunj, New Delhi110070 3. [ENTITY] S/o Sh. [ENTITY] R/o C3/3162, Vasant Kunj, New Delhi110070 4. [ENTITY] S/o Sh. [ENTITY] [CASE NUMBER] 1/6 pages [ENTITY] v. [ENTITY] & Ors. R/o C3/3162, Vasant Kunj, New Delhi110070 5. [ENTITY], I.N.A., New Delhi Through Standing Counsel 6. State of Govt. of NCT of Delhi Office of Registrar/SubRegistrarVII, I.N.A., Vikas Sadan, New Delhi Through Standing Counsel Defendants Date of Institution : 06.09.2010 Date of Reserving of Order : 04.01.2012 Date of Pronouncement of Order : 17.01.2012 O R D E R
1. Vide this order this Court shall dispose of application under [SECTION] [ACT] filed by the defendants no. 1 and 2 vide which they have prayed that the plaint be rejected as it is barred by [SECTION] of the [ACT] (hereinafter referred to as 'the Act') and is also barred by limitation.
2. It is stated that the plaint is liable to be rejected as the plaint states that the property was purchased on 06.11.1997 benami in the name of defendant no.
1. Therefore, the same is hit by [SECTION] of the Act due to the plaintiff's [CASE NUMBER] 2/6 pages [ENTITY] v. [ENTITY] & Ors.
own averments. Further, it is stated that the relief of cancellation of Conveyance Deed could only have been filed within 3 years of its execution and the suit is therefore, hopelessly barred by limitation as the Conveyance Deed was registered on 25.06.2003 and plaintiff all throughout had knowledge of the same.
3. The application has been contested by way of a reply wherein it is stated that the suit cannot be rejected under [SECTION] of the Act read with [SECTION] [ACT] because the surrounding circumstances and the intention of the parties at the time the transaction occured has to be taken into consideration. Further, it is stated that presumption under the Act are rebuttal in nature during the course of the trial and therefore, the plaint .
should not be rejected in limine It is also stated that the cause of action for filing of the present suit arose on 25.08.2009 when the defendants sought to assert their rights and when the plaintiff gathered knowledge of the defendants trying to alienate the suit property. It is therefore, stated that the suit is well within limitation.
4. This Court has heard the Ld. Counsel for the parties.
5. During the course of arguments Ld. Counsel for the plaintiff sought to place reliance upon (1) [PRECEDENT] [PRECEDENT] [PRECEDENT]. [PRECEDENT] 343 (3) [ENTITY] (Deceased) through [PRECEDENT] 171 (4) [PRECEDENT] 3/6 pages [ENTITY] v. [ENTITY] & Ors.
[PRECEDENT] [PRECEDENT] [PRECEDENT] (7) [PRECEDENT] Brig. (Retd.) [PRECEDENT] [PRECEDENT] (10) [PRECEDENT] (11) [PRECEDENT] [PRECEDENT] [PRECEDENT] (13) [PRECEDENT] and (14) [PRECEDENT]. Counsel for the defendants sought to place reliance upon (1) [PRECEDENT] [PRECEDENT] [PRECEDENT] (4) [PRECEDENT] (5) [PRECEDENT] (6) [PRECEDENT] (7) Shri Meenakshi Mills Ltd. V. [PRECEDENT].
6. Perusal of plaint shows that the plaintiff has averred that he has been in uninterrupted and continuous possession of the suit property since the date [CASE NUMBER] 4/6 pages [ENTITY] v. [ENTITY] & Ors.
of transaction. He has also sought to rely upon "[ENTITY] Vs. Harnam Dass and Ors." [PRECEDENT] 343. In the said judgment in paragraph no. 23, it has been held as under:
" In a benami transaction it must be established that the property is held or possessed by the benamidar and that consideration was paid by another person. If possession is not transferred to the Benamidar and actually the consideration is paid by another person and the possession of the property is also taken by such other person, the transfer deed by which the property is shown to have been sold to the benamidar would be merely a sham document. It will go to show that the real intention of the parties was not to confer any right, title or interest in the benamidar. The Act will apply only when both the conditions i.e. the transfer of possession to the Benamidar as well as the payment of consideration by a person other than the benamidar are proved and it will not extend to a case where actually the possession of the property has not been transferred to the benamidar."
7. Ld. Counsel for the defendants urged that the judgment would not apply to the present suit in view of the judgment of the Hon'ble Supreme Court titled as "[PRECEDENT] which has overruled [ENTITY] v. Prem Behari Khare (1989) 2 SCC 95 and the same was relied upon by our own High Court in [ENTITY] (Supra).
8. In the considered view of this Court said judgment has only overruled [CASE NUMBER] 5/6 pages [ENTITY] v. [ENTITY] & Ors.
"[ENTITY] (Supra)" as regards the retrospective application of the Act. Further, no judgment in rebuttal of [ENTITY] (Supra) has been brought to the notice of this Court. This Court is bound by [ENTITY] (Supra) and since, the possession of the property is disputed, the suit cannot be rejected in limine.
9. Rejection of the plaint has also been sought on the ground that a suit for cancellation of an instrument can only be brought within a period of three years from the date of knowledge (as per [SECTION], The [ACT]) and as per the plaintiff's averments, he has had knowledge of the document all along.
10. In the considered view of this Court, whether or not, the plaintiff had the knowledge of the document since inception and thus, the suit is barred by limitation is it self a mixed question of law and fact as plaintiff has claimed knowledge of conveyance deed was gathered at the time of filing of the suit. Further, plea of bar of limitation has been raised only qua relief of cancellation of conveyance deed. It is a well settled proposition of law that a plaint cannot be rejected in part. The suit has also been filed claiming a relief of declaration.
11. Therefore, the application under [SECTION] is hereby dismissed as for the reasons aforesaid, plaint cannot be rejected in limine
Announced in the open Court ([ENTITY]) On 17.01.2012 Civil Judge04/South District/New Delhi [CASE NUMBER] 6/6 pages [ENTITY] v. [ENTITY] & Ors.