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HIGH COURT OF DELHI
MANMOHAN SINGH, J.
Jhang Biradari Housing Residents Society – Appellant
Versus
Bharat Bhushan Sachdeva & Others – Respondents
I.A. Nos. 16791 & 13043 of 2011 In CS (OS). No. 1449 of 2011
Decided On : 04-02-2015
SUIT FOR DECLARATION - [KEYWORD] - SALE DEED - LIMITATION ACT - BENAMI TRANSACTION (PROHIBITION) ACT - COURT FEES ACT - SPECIFIC RELIEF ACT - COURT ANALYSIS AND CONCLUSION - In a suit for declaration that the plaintiff society is the actual and lawful owner of the property, the court held that the suit was barred by limitation, as the sale deed in favor of the predecessor-in-interest of the defendants was executed in 1962 and the suit was filed in 2011. The court also held that the suit was not maintainable under the Benami Transaction (Prohibition) Act, 1988, as the plaintiff society was not in possession of the suit property and had not paid the requisite court fees for the relief of possession. The court further held that the plaintiff society could not amend the plaint to claim possession of the suit property, as this would amount to withdrawing an admission already made and would prejudice the defendants.
Fact of the Case:
The plaintiff society filed a suit for declaration that it is the actual and lawful owner of the suit property, which was purchased in the name of the predecessor-in-interest of the defendants in 1962. The plaintiff society claimed that it was in possession of the suit property and that the sale deed in favor of the defendants was obtained by fraud and misrepresentation. The defendants filed a written statement denying the plaintiff society's claims and contending that the suit was barred by limitation and was not maintainable under the Benami Transaction (Prohibition) Act, 1988.
Finding of the Court:
The court held that the suit was barred by limitation, as the sale deed in favor of the predecessor-in-interest of the defendants was executed in 1962 and the suit was filed in 2011. The court also held that the suit was not maintainable under the Benami Transaction (Prohibition) Act, 1988, as the plaintiff society was not in possession of the suit property and had not paid the requisite court fees for the relief of possession. The court further held that the plaintiff society could not amend the plaint to claim possession of the suit property, as this would amount to withdrawing an admission already made and would prejudice the defendants.
Issues: 1. Whether the suit was barred by limitation? 2. Whether the suit was maintainable under the Benami Transaction (Prohibition) Act, 1988? 3. Whether the plaintiff society could amend the plaint to claim possession of the suit property?
Ratio Decidendi: 1. The court held that the suit was barred by limitation, as the sale deed in favor of the predecessor-in-interest of the defendants was executed in 1962 and the suit was filed in 2011. The court relied on the Limitation Act, which provides that a suit for declaration of title to property must be filed within 12 years from the date of the cause of action. 2. The court held that the suit was not maintainable under the Benami Transaction (Prohibition) Act, 1988, as the plaintiff society was not in possession of the suit property and had not paid the requisite court fees for the relief of possession. The court relied on Section 4 of the Benami Transaction (Prohibition) Act, which provides that a suit for declaration of title to property under the Act must be filed by the beneficial owner of the property and must be accompanied by the payment of the requisite court fees. 3. The court held that the plaintiff society could not amend the plaint to claim possession of the suit property, as this would amount to withdrawing an admission already made and would prejudice the defendants. The court relied on the principle of law that a party cannot be allowed to amend its pleadings to withdraw an admission already made, as this would be unfair to the other party.
Final Decision: The court dismissed the plaintiff society's suit for declaration.
Manmohan Singh, J.
1. This is a suit for declaration filed by the plaintiff against the defendants seeking a declaration that the plaintiff society is the actual and lawful owner of the property measuring 31 bighas comprised in Khasra Nos. 206/2, 208/2, 209, 210/2 and 211/2, Basai Dara Pur, Rothak Road, New Delhi (hereinafter referred to as the "suit property") with consequential relief of mandatory injunction seeking a direction for the defendants to transfer/convey the suit property in the name of the plaintiff.
2. The case of the plaintiff as per the plaint is that the plaintiff society was initially formed as an Association for re-settlement of people belonging to Jhang (Pakistan), who migrated from Pakistan to India after partition. The Association decided to take in auction from the Government the property at Basai Dara Pur, Delhi comprised in Khasra Nos. 206, 207, 208, 209, 210 and 211 measuring 61 bighas and 6 biswas (hereinafter referred to as the "said land"). However since the Association was not a registered Society, it could not bid in the auction in its own name. Accordingly, it was decided that two of its members, namely, late Sh. Amir Chand and Sh. Brij Lal, would bid in their own names for taking the said land for the Association. Consequently, their bid was accepted.
3. It is averred in the plaint that after having made the entire payment, the Association requested the Assistant Settlement Commissioner, Delhi to issue Sale Certificate for the said land. It is stated that out of the entire payment made for the purchase of the said land, some amount came from the members of the Association while some other people who were not the members of the Association had paid the rest. Accordingly, out of the said land measuring 61 bighas 6 biswas, land measuring 30 bighas 6 biswas was acquired and the remaining land measuring 31 bighas (the suit property) remained vested in the Association. Later on, it was decided by the Association that payments be made to the non-members of the Association who had paid some money in the bid amount. For this purpose, some members of the Association made contributions. The names of some of them are given in Para 8 of the plaint.
4. Vide a General Power of Attorney dated 16th April, 1960 which was executed by late Sh. Amir Chand and Sh. Brij Lal, Sh. Matwal Chand was appointed as the Secretary of the Association. Certificate of sale pertaining to the suit property was issued in the name of Amir Chand and Sh. Brij Lal. However, later on Sh. Amir Chand and Sh. Brij Lal were not interested in continuing as members of the Association and wanted to move out by taking their share as per market value after a portion of land was taken over by the Government. The sale deed pertaining to the remaining land (i.e. the suit property) was to be executed in the name of the Association, however, since the Association was not registered, it was decided that pending registration of the suit property be transferred in the name of the new Secretary, Sh. Matwal Chand. Accordingly, sale deed dated 16th May, 1962 was executed pertaining to the suit property in the name of the Secretary of the Association, Sh. Matwal Chand.
5. The Association was thereafter converted into a regular society, i.e. the plaintiff herein, registered under the Societies Registration Act on 23rd, January, 1996. Sh. Matwal Chand was re-appointed as the Secretary of the plaintiff.
6. As stated earlier, out of the land measuring 61 bighas 6 biswas, land measuring 30 bighas 6 biswas was acquired and compensation was disbursed. The remaining land i.e. the suit property measuring 31 bighas was also sought to be acquired for which acquisition proceedings were started. The said acquisition proceedings were challenged by way of Writ Petition (W.P. (C) 697/1983) in the name of Sh. Matwal Chand since in the official records, the suit property was in his name. The said writ petition was allowed vide order dated 15th April, 2004. The said or
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