Point of Law: Civil Law – Civil Suit - Unregistered agreement to sell – Maintainability of suit - When and from whom plaintiff came into lawful possession of property, and entitlement of plaintiff to restoration of possession based on admission of Mithilesh Rani that plaintiff trespassed into property can be decided in present application and no full-fledged trial is required for same. Plaint filed by plaintiff is not maintainable and is liable to be rejected.

JUDGMENT :

MUKTA GUPTA, J.

I.A. 14245/2018 (u/O VII R 11 CPC on behalf of Defendant No.1 seeking dismissal of the plaint)

1. By this application under Order VII Rule 11 CPC defendants seeks rejection of the plaint.

2. Case of the plaintiff is that he is the owner of the property bearing No. F-9, Kalkaji, New Delhi (in short suit property) which initially belonged to one K.L. Luthra who passed away on 10th March 1966 and was survived by his widow Smt. Karmawali and mother Smt. Ishwar Devi, who became the joint owners of 50% share in the suit property being the two class-I legal heirs. Smt. Ishwar Devi vide her last Will and testament dated 24th November 1968 bequeathed all her rights in favor of her son B.R. Luthra. She passed away on 27th January 1971 and as per the Will her 50% share bequeathed upon B.R. Luthra. After the death of Smt. Karmawali on 11th December 1997, B.R. Luthra claimed to be the sole owner of the suit property. Consequently, B.R. Luthra and plaintiff entered into various documents inter alia an Agreement to Sell dated 2nd July 2007, last Will and testament dated 9th October 2007, Memorandum of Understanding dated 9th October 2007, General Power of Attorney dated 9th October 2007, Special Power of Attorney dated 22nd April 2008 and other documents with respect of payments, by virtue of which plaintiff claims to have become the owner of the suit property. B.R. Luthra passed away in the year 2012 and thus, the property devolved upon the plaintiff. It is further claimed that various occupants of different portions of the suit property entered into settlement agreements with the plaintiff thereby assigning/surrendering all their rights, title and interest in the suit property in favour of the plaintiff. Thus, since the year 2010, the plaintiff was in exclusive and sole possession of substantial portion of the suit property.

3. According to the plaint in the year 2016 the plaintiff learnt about the proceedings instituted on behalf of Late Sh. B.R. Luthra and Late Smt. Karmawali, one of which was Suit No. 1885/1987 titled as “Sh. B.R. Luthra v. Smt. Karmawali & Ors.” wherein Sh. B.R. Luthra inter-alia sought relief of partition. Further in terms of Will dated 20th May 1990 of Smt. Karmawali, Smt. Mithilesh Rani (Defendant No. 1 herein) filed a probate proceeding claiming to be successor in interest to the estate of Smt. Karmawali. According to Smt. Mithilesh Rani by virtue of the Will of the deceased K.L Luthra, Smt. Karmawali was the absolute owner of the suit property. The suit for partition filed by Sh. B.R. Luthra was adjourned sine die because of the pendency of the probate proceedings instituted by Defendant No. 1. Subsequently, the probate of the Will of Lt. Smt. Karmawali was granted in favour of Smt. Mithilesh Rani.

4. Summons in the suit were issued to the defendants. Case of the defendant No.1 is that the instant suit filed by the plaintiff is liable to be rejected inter alia for the reasons that plaint does not disclose any cause of action, the suit of the plaintiff is barred by the law of limitation and not maintainable and the reliefs claimed are undervalued. Further, the instant suit is filed by the plaintiff through his alleged Power of Attorney holder, Ms. Kavita Gaba who has no personal knowledge about the facts pleaded.

5. Learned counsel for the defendant No.1 submitted that no cause of action can accrue to the plaintiff to sue for declaration of his title on basis of the documents being unregistered Agreement to Sell dated 2nd July 2007, unregistered Power of Attorney dated 9th October 2007, Memorandum of Understanding 9th October 2007 and registered Will dated 9th October 2007 executed in favor of plaintiff. Reliance is placed upon the decision of the Supreme Court in Civil Appeal No. 8003/2019 titled Shiv Kumar & Anr. v. Union of India & Anr. wherein it was held that purchase of immovable property through such documents does not confer title on the purchaser and the execution of such document does