Dixit 1 APP-161-09 IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION APPEAL NO.161 OF 2009 IN NOTICE OF MOTION NO.3514 OF 2008 IN SUIT NO.2715 OF 2007 Vimal Builders ... Appellants [Orig. Plaintiffs] V/s. Nand Kumar Anant Vaity & Ors. ... Respondents [Orig. Defendants] Mr. Simil Purohit with Mr. Samit Shukla, i/b. MDP Associates, for the Appellants. Mr. G.W. Mattos, AGP, for the Respondent-State. Mr. Ponvel Nadrajan, Authorized Representative, for Respondent No.41. CORAM : D.K. DESHMUKH & ANOOP V. MOHTA, JJ. DATE : 1 ST DECEMBER, 2011. P.C. : 1. By this Appeal, Plaintiffs in Suit No.2715 of 2007 challenge the order dated 3rd March, 2009, passed by a learned Single Judge of this Court in Notice of Motion No.3514 of 2008. The Plaintiffs have filed this Suit claiming a decree of declaration that Defendant Nos.1 to 39, hereinafter referred to as “Vaitys”, are Dixit 2 APP-161-09 owners of the suit property and Defendant No.41, hereinafter referred to as “Deonar” have no right, title or interest in the property. They have sought several consequential reliefs including permanent injunction. In the Civil Suit, Notice of Motion was taken out for appointment of Receiver on the suit property and for a temporary injunction restraining the Defendant No.41 from alienating, encumbering, transferring or creating third party right or disturbing the possession of the Plaintiffs. In short, the Suit is filed on the footing that it is the Plaintiffs who are in possession of the property. The learned Single Judge has recorded a finding that the Plaintiffs are not in possession of the property and she, therefore, disposed off the Notice of Motion. An objection was raised on behalf of the Appellants to Mr. Ponvel, who claims to be the Secretary of the Deonar Society, representing that Society in this Appeal. Therefore, we asked the learned AGP to have the Deputy Registrar of the Co-operative Societies make enquiry to find out whether Mr. Ponvel can be said to have authority to represent that Society. Mr. Jayant D. Patil, Deputy Registrar of Co-operative Societies, has filed affidavit dated 15th November, 2011. In that affidavit, he has narrated the facts about the Society. He has, however, stated that on 15th September, 2008, it appears from the record of the Society, that a Special General Body Meeting was held and five members to the Managing Committee were elected. From the affidavit, it appears that Mr. Ponvel is one of the elected members of the Managing Committee. In that affidavit, the Deputy Registrar also stated that the Dixit 3 APP-161-09 election of the Managing Committee of the Society appears to be illegal and that he proposes to appoint an Administrator. However, fact remains that, even according to the Deputy Registrar, the Society’s General Body has elected a Managing Committee of which Mr. N. Ponvel is a member. Therefore, in our opinion, he would be entitle to represent the Society. 2. We have heard learned Counsel appearing for both the sides. 3. The basic submission of the learned Counsel appearing for the Appellants is that, as a matter of fact, it is the Plaintiffs who are in possession of the property. Therefore, to find out whether Plaintiffs have made out a prima facie case for the relief that the Plaintiffs are seeking, namely, that Vaitys continue to be the owners of the property and Deonar Society has no right, title or interest in the property. We have perused the record. It appears that by an Agreement dated 24th October, 1981, the Vaitys had agreed to sell the property to 15 persons. Those 15 persons are described as Promoters of Deonar Society. In that Agreement there is a recital, which reads as under :- “The Vendors confirm having delivered to the Purchasers actual vacant possession of the whole of the said property. Accordingly the Purchasers are not in possession of the whole of the said property as Purchasers and owners thereof and the Purchasers are entitled to carry out any construction and other works Dixit 4 APP-161-09 thereon and deal with the dispose of, alienate or encumber or part with the possession of the said property or any part thereof in any manner the Purchasers may deem fit.” 4. It appears that a Power of Attorney was also executed in favour of three of the Purchasers authorizing them to execute Conveyance. In pursuance to that Power of Attorney, the three power of attorney holders by a registered Conveyance dated 18th August, 1989, conveyed the property to Deonar Society. It appears that the Vaitys, on 18th December, 1995, unilaterally executed a Deed, whereby they cancelled the Conveyance of the land in favour of the Society. From this document it is clear that the Vaitys were aware of the registered Conveyance executed in favour of the Society on 18th December, 1995. The Vaitys, on 4th October, 2002, agreed to grant development rights in the land in favour of M/s. Shree Anjaneya Estates. In that Agreement, there is a reference made to the Deonar Society and the litigation between Vaitys and that Society, which was then pending. Recital 1 of that Agreement is relevant, which states as under :- “1. The Owners shall entrust the development rights and the Developers shall accept the development rights in respect of the said property described in the schedule hereunder written, free from all encumbrances, but subject to the claim of the said Deonar Industrial Premises Co-operative Society and subject to the said pending litigation at a lumsum consideration of Rs.70,00,000/- (Rupees Seventy Lacs only) which consideration has been paid and/or promised to be paid by the Developers to the Owners as above. Dixit 5 APP-161-09 (a). Rs.35,00,000/- (Rupees Thirty Five Lacs Only) paid by the Developers to the Owners prior to the execution of these presents (the payment receipt whereof the Owners have already admitted and acknowledged and do hereby once again admitted of acknowledgment and of and from the same and ever thereof do for ever quit, release and discharge the Developers). (b). Rs.20,00,000/- (Rupees Twenty Lac Only) paid by the Developers to the Owners simultaneously upon the execution of these present as and by way of further payment of the condition (the payment receipt whereof the Owners do and each of them doth hereby admit and acknowledge). (c). Rs.10,00,000/- (Rupees Ten Lac Only) to be paid by the Developers to the Owners upon the Owners getting the plans for the development of the said property sanctioned and obtaining IOD and CC and commencing the development work of the said property. (d). Rs.5,00,000/- (Rupees Five Lacs Only) to be paid by the Developers to the Owners simultaneously upon the Owners executing a final Deed of Conveyance and all such other documents and writings in favour of the Developers and/or their nominee/s for the effectual completion of the sale and transfer of the said property in favour of the developers and/or their nominee/s as mentioned hereinabove.” (Emphasis supplied) 5. At that time, it appears, a Civil Suit being Small Cause Suit No.5704 of 2001 filed by one Jayant Narayan Vaity as Karta of Vaity H.U.F. in Bombay City Civil Court was pending. In that Civil Suit, the Plaintiffs were claiming a permanent injunction against Deonar Society restraining it from disturbing Dixit 6 APP-161-09 possession of Vaitys of the suit land. It is a common ground that the Plaintiffs in that Suit have subsequently withdrawn that Suit. It is, thus, clear that there is admittedly a registered Conveyance of the property in favour of the Deonar Society. Vaitys were aware of that Conveyance since 1995. They never filed any Suit claiming a decree of declaration that Conveyance is invalid and should be cancelled. The Plaintiffs, admittedly, have purchased the rights of Defendant No. 40 M/s. Shree Anjaneya Estates, who were aware of the rights created in favour of the Society and the litigations then pending in 2002. The Plaintiffs, therefore, can be safely said to be aware of the interest claimed by the Society in the property atleast in 2002 through their predecessor in that. Article 59 of Schedule to the Limitation Act, 1963, would be relevant, which reads as under :- “59.To cancel or set aside an instrument or decree or for the rescission of a contract - Period of Limitation is three years. Time from which period begins to run – When the facts entitling the plaintiff to have the instrument or decree cancelled or set aside or the contract rescinded first become known to him.” 6. Perusal of the provisions of Section 13 of the Specific Relief Act, 1963, shows that a person against whom a written instrument is void or voidable and who apprehends that the instrument if left outstanding, may cause him serious injury has to institute a Suit for seeking a declaration of that instrument to be void or voidable and for its cancellation. Sub-section (2) of Section 21 provides that if Dixit 7 APP-161-09 such a instrument is a registered document, then copy of the order of the Court cancelling such document is to be sent to the Registrar. These provisions obviously have been made in public interest because if a document is registered instrument, people are likely to act on that instrument unless that document is cancelled or set aside by a Competent Court. 7. The Vaitys, as observed above, became aware of the Conveyance in 1995. The Plaintiffs are claiming through them. Obviously, therefore, a Suit by Vaitys or by Plaintiffs, who are claiming under them, for claiming a declaration that the Conveyance in favour of Deonar Society is invalid would now be barred by Law of Limitation. When in 1995 Suit was filed by one of the Vaitys as a representative of all the Vaitys, he was aware of the Conveyance in favour of the Society, therefore, as cause of action for filing a Suit claiming a declaration that the Conveyance in favour of Deonar Society is invalid had accrued to him in view of the provisions of Order 2 Rule 2 of the Code of Civil Procedure, he was obliged to include in the Suit a prayer claiming a declaration that the registered Conveyance in favour of the Deonar Society is invalid and, therefore, should be cancelled. But, he chose not to claim that relief. Therefore, in view of the provisions of Order 2 Rule 2 of the Code of Civil Procedure, a Suit by Vaitys or by any person claiming through them for a declaration that the Conveyance in favour of Deonar is invalid is barred. It is obvious from what we have observed above that the Plaintiffs have no Dixit 8 APP-161-09 prima-facie case to get a declaration that the Vaitys, through whom they are claiming, continue to be the owners of the property, or, that the Deonar Society has no title to the property. As the Plaintiffs do not have prima facie case, obviously, they are not entitled to any temporary injunction in their favour. Therefore, there is no question of making enquiry into any other aspect of the matter. What is further to be seen is that in the Agreement, which preceded the Conveyance, there is a clear recital that possession of the land has been handed over by the Vaitys to the Purchasers, who were Promoters of Deonar Society. There is also a recital in the registered Conveyance that the Deonar Society is in possession. As observed above, the Deed of Conveyance in favour of the Deonar Society appears to have become final between the parties. It is a registered document and, therefore, presumption of regularity of that document under the Evidence Act attaches to that document and, therefore, any Court atleast at the prima facie stage will have to go by the recitals in that document. 8. In our opinion, therefore, at this stage, the Court will be justified in holding that in view of the recitals in the registered document, it is the Deonar Society, which is in possession of the property. The learned Single Judge has also declined to make any interim order in favour of the Plaintiffs and has disposed off the Notice of Motion, though for slightly different reasons. In our opinion, however, in view of the conclusion to which we have reached, we see no reason to disturb the Dixit 9 APP-161-09 order which is impugned in this Appeal. The Appeal, therefore, fails and is dismissed. [ANOOP V. MOHTA, J.] [D.K. DESHMUKH, J.]