First Appeal No.784 of 2017

22nd September, 2017.

Petitioner Counsel: Shri R.M. SHARMA
Respondent Counsel: Shri SHYAM DEWANI, Shri K. DODANI

Cases Cited:
Archana Bhimrao Randaye Vs. Dr Kavita Dilip Changole, 2017(5) ALL MR 21=2017(3) Mh.L.J. 589 [Para 9,12]
Mrs Geeta Patkar Vs. Chandrakant Kantilal Shah & ors., 2015(5) ALL MR 794 [Para 9,12]
Sundeep Polymers Pvt Ltd, Mumbai Vs. Maharashtra State Electricity Distribution Company Ltd., Nagpur, 2009 (5) Mh. L. J. 327 [Para 10,16]
Sushilabai wd/o. Bomenshaw Byramji Vs. Kamlarukh wd/o DPR Cassad and anr, 2014(2) ALL MR 629=2014 (3) Mh.L.J. 404 [Para 10,16]
Hardesh Ores (P) Ltd. Vs. Hede And Company, 2007 ALL SCR 1995=(2007) 5 SCC 614 [Para 11,12,21]
Church of Christ Charitable Trust And Educational Charitable Society Vs. Ponniamman Education Trust, 2012 ALL SCR 2178=(2012) 8 SCC 706 [Para 11,12,21]
I. S. Sikandar Vs. K. Subramani & ors, (2013) 15 SCC 27 [Para 11,12,21]
Savthri & ors Vs. Karthyayani Amma & ors, 2007 ALL SCR 2986=(2007) 11 SCC 621 [Para 24,25]

JUDGMENT

JUDGMENT :- Heard. Admit. Since the appeal is preferred against the judgment on preliminary issue, it is heard forthwith by consent of parties and also in terms of order of this Court dated 29th June 2017. As all the related documents are forming part of this appeal, there is no need to call for Record and Proceedings. This has also been conceded to by both the parties.

2. This appeal takes exception to the legality and correctness of the judgment on preliminary issue dated 15th April 2017 rendered in Special Civil Suit No. 39 of 2015 by the 7th Joint Civil Judge, Senior Division, Nagpur. By this judgment, suit of the appellant/plaintiff has been dismissed with costs of Rs. 5000/- by the trial Court on the ground that it is barred by limitation.

3. The appellant, claiming to have acquired a right in and title to the suit property bearing City Survey No. 2213/01, Municipal Corporation House No. 410 situated in Ward No. 65, Mohan Nagar, Nagpur, more particularly described in plaint paragraph no. 1, filed a suit against the respondents seeking declarations that the Will dated 4.3.1946 forebade the beneficiary under the Will or anybody claiming through him to let out, sell or otherwise alienate the suit property; that registered sale deed dated 11.4.2012 executed in respect of suit property by respondent no. 1 in favour of respondent no. 2 was null and void and thus was liable to be cancelled and relief for possession of suit property and injuncting of the respondents from carrying out any construction over the suit property or alienating or creating third-party interest in it.

4. According to the appellant, one Mohanlal Chironjilal Jaiswal was the owner of the suit property and after his death, it was inherited by Jainarayan Jaiswal. During his life time, Jainarayan bequeathed suit property by registered Will dated 4.3.1946 to his son Chandanlal Jaiswal. But such bequeathal of the suit property was subject to the condition that Chandanlal shall strictly use the suit property for his own residential purpose and shall have no right to let out, sell, mortgage, gift or otherwise alienate the suit property in any manner and if he did so, it shall be taken over and occupied by nephew of the testator, Lala Ganeshlal Harnarayan Jaiswal. Appellant claimed himself to be a grand-son of Lala Ganeshlal Harnarayan Jaiswal.

5. After the death of Mohanlal, the suit property came to Chandanlal. Chandanlal used the suit property for his residential purpose only and did not commit any breach of the condition of the Will dated 4.3.1946. However, after his death in 1970, his wife Laxmibai came into possession of the suit property and it was after this point of time, it appears that the attempts to deal with the suit property were made.

6. It was contended by the appellant that respondent no. 1, falsely claiming herself to be the owner of the suit property, made an attempt to sell the suit property to some third person. It was further claimed by the appellant that on 18.7.2011, he learned about such an attempt being made by respondent no. 1. He, therefore, applied to the Zonal Office of the Nagpur Municipal Corporation under the Right to Information Act, 2005 to obtain copies of documents relating to the suit property and those documents were supplied to him on 26.7.2011. Amongst the supplied documents, was the Will dated 4.3.1946 which made it clear to the appellant that suit property could not be sold or alienated in any manner by Chandanlal or for that matter, anybody claiming through him. The appellant, therefore, issued a notice to respondent no. 1 to desist from disposing of the suit property in any manner, but in vain. It appears that there was one suit filed by respondent no. 1 against this appellant, which was Regular Civil Suit No. 3912 of 2012 seeking relief of permanent injunction against the appellant. It was in respect of possession of the suit property only. The appellant had filed his Written Statement also in that suit as he learnt from the pleadings in that suit that the suit property had been sold to respondent no. 2. But, that suit was subsequently withdrawn by respondent no. 1. It was thereafter the appellant realized that it was necessary for him to file a civil suit against both the respondents so that full effect to the intention of the testator could be given effect to by seeking appropriate declarations and reliefs relating to possession and injunction. Accordingly, suit being Special Civil Suit No. 39 of 2015, the present suit, was filed by the appellant against both the respondents.

7. Respondents strongly resisted the suit. They also filed an application under Order VII, Rule 11 read with Section 9A and Section 151 of the Code of Civil Procedure for rejection of plaint and deciding the jurisdiction as a preliminary issue. The main thrust of the application was on the point that the suit as filed by the appellant was barred by limitation. After hearing both sides, the trial Court framed a preliminary issue on the question of jurisdiction under Section 9A of CPC. This issue was decided on merits by the trial Court by this judgment rendered on 15th April 2017. It is this judgment which is the cause for filing of present appeal by the appellant, the original plaintiff.

8. I have heard Shri R. M. Sharma, learned counsel for the appellant and Shri Shyam Dewani, learned counsel for the responents. I have gone through the paper book of this appeal. Now, the following point arises for my determination:

Whether the suit filed by the appellant is barred by limitation ?

9. Learned counsel for the appellant submits that serious error of fact and law has been committed by the trial Court in recording a finding that the suit filed by the appellant is hopelessly barred by Law of Limitation. He submits that declarations sought by the appellant in the suit were of such nature as they could not have been sought till the time a clear right to sue accrued to the appellant and in this case, clear right to seek these declarations accrued to the appellant only when it became clear to the appellant that the suit property had been agreed to be sold by respondent no. 1 to respondent no. 2 sometime on 17.3.2012 when an agreement to sell was executed by respondent no. 1 in favour of respondent no. 2, which was followed by sale deed dated 11.4.2012. He submits that under Article 58 of the Limitation Act, the limitation period prescribed for obtaining declarations of the nature as are sought in the present suit, is of three years and it begins to run when the right to sue first accrues. According to him, right to sue in the instant case first accrued on 17.3.2012 as it became clear on that date only that there had been alienation of the suit property in violation of the condition contained in the Will dated 4.3.1946. He places reliance upon Archana Bhimrao Randaye v. Dr Kavita Dilip Changole reported in 2017 (3) Mh. L. J. 589 : [2017(5) ALL MR 21] and Mrs Geeta Patkar v. Chandrakant Kantilal Shah & ors reported in 2015(5) ALL MR 794.

10. Learned counsel for the appellant further submits that while considering the ground of limitation for the purpose of rejection of plaint under Order VII, Rule 11 (d) of the Code of Civil Procedure, the Court has to consider only averments in the plaint and it cannot go beyond those averments. For this purpose, he relies upon Sundeep Polymers Pvt Ltd, Mumbai v. Maharashtra State Electricity Distribution Company Ltd., Nagpur reported in 2009 (5) Mh. L. J. 327 and Sushilabai wd/o Bomenshaw Byramji v. Kamlarukh wd/o DPR Cassad and anr reported in 2014 (3) Mh. L. J. 404 : [2014(2) ALL MR 629].

11. Shri Dewani, learned counsel for the respondents submits that the impugned order is correct on law and facts and, therefore, needs no interference. He invites my attention to some of the pleadings in the plaint which, in his opinion, clearly show that though the first cause of action to file the suit in the own words of the appellant, accrued on 26.7.2011, as stated in paragraph 24 of the plaint, the suit seeking a declaration that the suit property cannot be let out, sold, mortgaged or bequeathed or alienated in any manner together with other declaratory reliefs was filed in January 2015 and, it was clearly beyond the period of limitation prescribed under Article 58 of the Limitation Act. He also submits that declaration regarding the sale deed dated 11.4.2012 being bad and not binding upon the appellant, could not be sought unless the will dated 10.9.1999 executed in respect of the suit property by deceased Laxmibai in favour of respondent no. 1 is also challenged for its validity and as it has not been done by the appellant, it has to be said that the suit does not disclose cause of action which is nothing but every fact and bundle of facts which, if controverted, would have to be proved by the plaintiff in order to get the relief sought in the suit. He places his reliance upon the cases of Hardesh Ores (P) Ltd. v. Hede And Company reported in (2007) 5 SCC 614 : [2007 ALL SCR 1995]; Church of Christ Charitable Trust And Educational Charitable Society v. Ponniamman Education Trust reported in (2012) 8 SCC 706 : [2012 ALL SCR 2178] and I. S. Sikandar v. K. Subramani & ors reported in (2013) 15 SCC 27.

12. In the case of Archana Bhimrao Randaye [2017(5) ALL MR 21] and Mrs Geeta Patkar (supra), it has been held that limitation under Article 58 begins to run only when there is a clear threat to right asserted by the plaintiff. In the cases of Hardesh Ores [2007 ALL SCR 1995] and Church of Christ [2012 ALL SCR 2178] (supra), it has been held that in order that a plaint discloses cause of action, every fact and every bundle of facts which, if controverted, would be required to be proved by the plaintiff in order to seek relief in his favour, must be pleaded and that the Court must guard against the attempts of the party to camouflage the bar of limitation through illusions of cause of action created by a clever draftsman and if such essential facts are not pleaded, the plaint would have to be held as not disclosing cause of action. In the case of I. S. Sikandar (supra), it was held that when the agreement for sale of which specific performance was sought by the plaintiff itself was terminated owing to failure of plaintiff to perform his part of contract, any suit for specific performance of agreement to sell and consequential relief of decree for permanent injunction, could not be maintained in law unless a relief to declare the termination of agreement for sale as bad in law, is also sought.

13. There can be no dispute about these principles of law and bearing them in mind, now the rival arguments would be considered.

14. Since the question of bar of suit on the ground of limitation has been raised, it would be appropriate that the reliefs claimed in the suit are considered first. The suit filed by the appellant seeks following reliefs :

"It is, therefore, prayed that this Hon'ble Court be kindly pleased to :

(1) Declare that late Shri Jaynarayan son of Mohanlal Jaiswal have executed a WILL dated 4.3.1946 and according to the said WILL, the suit property cannot be let out, Sale, mortgaged or gift, WILL or alienate in any manner.

(2) Declare that according to the WILL dated 4.3.1946, possession of suit property shall be taken and occupied by late Lala Ganeshlal Harnarayan Jaiswal and thereafter plaintiff being legal heir of late Lala Ganeshlal Harnarayan Jaiswal.

(3) Declare that Registered Sale Deed dated 11.4.2012 in respect of suit property executed by defendant no. 1 in favour of defendant no. 2 is null and void, illegal and not binding on the plaintiff.

(4) Declare that Sale Deed dated 11.4.2012 executed by defendant no. 1 in favour of defendant no. 2 stands cancelled in respect of suit property.

(5) Restrain defendants from carrying out any construction on suit property or suit plot and from alienating or creating any third party interest or transfer any portion of the suit property in favour of any third person till disposal of this suit.

(6) Pass a decree of possession in respect of suit property in favour of plaintiff and direct the defendants to handover physical possession of the suit property to plaintiff in view of WILL dated 4.3.1946.

(7) Saddle the cost on the defendants, and

(8) be further please to pass any such other order as may be deemed fit and proper in the facts and circumstances of the case for which act of kindness the plaintiff shall remain duty bound and ever pray."

15. A minute perusal of these reliefs would make it clear to us that the first relief seeking a declaration that as per the Will dated 4.3.1946, the suit property cannot be let out or sold or alienated in any manner is the main relief based on which are the remaining reliefs incorporated in prayer clauses (2) to (6). It would then follow that the other reliefs in prayer clauses (2) to (6) are only consequential to the main relief sought in clause (1) and if main relief is granted, then only these consequential reliefs could be granted. It would also mean that if main relief is not granted, the other reliefs being consequential in nature, must necessarily fail.

16. The main relief claimed in clause (1) is of the declaration and there is no dispute between the parties that limitation period prescrtibed for such a declaration is covered under Article 58 in the Schedule to the Limitation Act. It lays down that to obtain such a declaration, the period of limitation is three years and it begins to run when right to sue first accrues. We have seen from the ratio of the case laws referred to earlier that this right to sue has been interpreted to be a "clear right to sue" when there is a clear and unequivocal threat to the right sued upon. In order to determine as to when such clear right to sue first accrued to the appellant in the present case, it would be necessary for us to refer to the pleadings in the plaint and evidence led. At this juncture, I must say that what is being decided by this Court is the legality and correctness of the judgment delivered on the preliminary issue framed under Section 9A of CPC and, therefore, it would be permissible for this Court to not only consider the pleadings in the plaint, but also the pleadings of the respondent and evidence adduced by the parties on the preliminary issue and, therefore, the cases of Sundeep Polymers and Sushilabai wd/o Bomenshaw Byramji [2014(2) ALL MR 629] (supra) relied upon by learned counsel for the appellant would have no application to the present case.

17. In paragraph 13 of the plaint, the appellant has averred that sometime on 18.7.2011 he came to know or got a hint that respondent no. 1 was trying to sell the suit property and, therefore, he applied to the Zonal Office of the Corporation under the Right to Information Act to obtain documents relating to the suit property and that he also received them on 26.7.2011 in which there was a copy of Will dated 4.3.1946. It is the contention of the appellant that Will dated 4.3.1946 contained a clause that suit property was bequeathed to Chandanlal for the sole purpose of his residential use and that he was debarred from selling or alienating in any manner the suit property and if he did so, the said property was to be taken over and occupied by the nephew of the testator, Lala Ganeshlal Harnarayan Jaiswal, who is claimed to be the grandfather by the appellant. So, what had become clear to the appellant was the fact that an attempt was being made by respondent no. 1 to sell the suit property, knowledge about which was acquired by him on 18.7.2011 and, respondent no. 1 could not do so in view of the condition imposed in the Will dated 4.3.1946, knowledge about which was obtained by him on 26.7.2011. In other words, by 26.7.2011 it had become clear to the appellant that the suit property could not be sold or alienated in any manner by respondent no. 1 and yet respondent no. 1 was making efforts to sell the same. Thus, the first right to sue in the present case, which was a clear right to sue, accrued to the appellant on 26.7.2011.

18. In paragraph 24 of the plaint, the appellant also admits the fact that the cause of action for the suit arose on 26.7.2011 when he pleads thus :

"(24) The cause of action for this suit arose at Nagpur on 26.7.2011 when plaintiff got copy of WILL dated 4.3.1946 from the Office of Nagpur Municipal Corporation, Nagpur........."

19. In the oral evidence adduced by the appellant also, the appellant admits that in the year 2011, he learned about the Will. So, the own pleadings of the appellant and his admissions given in his oral evidence, would together show that on 26.7.2011, he was well aware that the suit property could not be alienated in any manner by its occupant and that there were attempts made by the occupant to sell the suit property. Such knowledge of the appellant constituted a clear right to sue to get a relief which is the main relief in prayer clause (1) to the effect that as per Will dated 4.3.1946, the suit property cannot be let out, sold, mortgaged, bequeathed or alienated in any manner. For getting such a declaration, it was enough for the appellant to apprehend, founded on reasonable basis, that the suit property was likely to be alienated and such apprehension would have constituted and in fact, it being already there has constituted in the present case, a cause of action for filing of a suit seeking such a relief by the appellant. So, the limitation for this relief in the present case began to run on 26.7.2011 and that means, suit for this relief should have been filed on or before 25.7.2014. But, suit has been filed in January 2015 and, therefore, the main relief sought in the present suit would have to be said as barred by law of limitation as prescribed under Article 58 of the Limitation Act, which I do so.

20. Once it is found that the main relief sought in the suit itself is barred by limitation, the other reliefs contained in prayer clauses (2) to (6), being consequential in nature, could also not be granted and thus, for those reliefs also, the suit would not be maintainable in law.

21. Consequential reliefs in prayer clauses (3), (4), (5) and (6), I further find, can also not be sought in the present case as, admittedly the appellant inspite of having acquired knowledge about execution of Will dated 10.9.1999 by deceased Laxmibai in favour of respondent no. 1 and which was the basis for respondent no. 1 to sell the suit property to respondent no. 2, has not challenged the Will for its validity in the present suit. Challenge to this Will of 1999 was the foundation of the reliefs claimed in clauses (3), (4),(5) and (6), which formed only the edifice or the manifestations or the consequences of the main or foundational relief. Therefore, as held in the cases of Hardesh ores (P) Ltd. [2007 ALL SCR 1995] and Church of Christ [2012 ALL SCR 2178] (supra), the plaint in this case does not disclose complete cause of action in order to maintain the suit seeking such declarations as the sale deed dated 11.4.2012 is null and void and liable to be cancelled and for possession and such relief as restraining the respondents from carrying out construction. Even in the case of I. S. Sikandar (supra), the Hon'ble Supreme Court has held that unless a foundational relief is sought, a suit seeking consequential relief is not maintainable in law.

22. As if what is seen above is not enough, there is onemore dimension involved in this case, which if considered, would make one find that at the base of everything sought, lies the desire of the appellant to achieve an impossibility. The appellant by prayer clause (2) seeks a declaration that possession of suit property be taken and occupied by "Late Lala Ganeshlal Harnarayan Jaiswal", a dead person. Now, if this clause is also considered as seeking a foundational relief vis-a-vis consequential reliefs in prayer clauses (3) to (6), and this relief is stillborn, all rest of the reliefs in clauses (3) to (6) must also meet the dead end.

23. On the aforestated additional grounds as well, I find that the suit in respect of prayer clauses (2), (3), (4), (5) and (6) is not maintainable in law.

24. At this juncture, learned counsel for the appellant has invited my attention to the case of Savthri & ors v. Karthyayani Amma & ors reported in (2007) 11 SCC 621 : [2007 ALL SCR 2986] wherein it has been held that one who propounds the Will, the burden of proving that Will lies on him. He submits that the appellant is not relying upon the Will dated 10.9.1999 and, therefore, his not seeking any relief in the nature of declaration that Will dated 10.9.1999 is invalid and bad in law, cannot be held against the appellant.

25. It is true that the appellant is not relying upon this Will. Equally, it is true that the appellant has been made aware of existence of this Will when he appeared in the previously instituted suit against him by respondent no. 1, which was Regular Civil Suit No. 3912 of 2012 filed on 5th May 2012. In that suit, it was made clear by respondent no. 1 that she was in lawful possession of the suit property for last so many years; that the Will dated 10.9.1999 in respect of the suit property was executed in her favour by deceased Laxmibai; that she was paying property taxes to the Corporation; that her name as possessor and owner of the suit was duly mutated; that she was daughter of real sister of Laxmibai and that Laxmibai had taken care of her since she was two years old, that the suit property was bequethed to her by Laxmibai through her Will dated 10.9.1999 and that she had entered into an agreement for sale of the suit property with respondent no. 2. With these facts having been brought to the knowledge of the appellant, one has to say, it was essential for the appellant to also question validity of the Will dated 10.9.1999 or otherwise, questioning the validity of the sale deed dated 11.4.2012 would only be an incomplete and half-hearted attempt on his part, not based upon complete cause of action. This is what has happened in the present case and, therefore, it was necessary for the appellant to have questioned the validity of the Will dated 10.9.1999 as well. This would enable me to further find that what was necessary on the part of the appellant was not proving the Will dated 10.9.1999, but proving its invalidity and, therefore, with due respect, I would say, case of Savithri & ors [2007 ALL SCR 2986] (supra) would render no assistance to him.

26. In the result, I find that no error of fact or law could be noticed in the impugned judgment and there is no need to make any interference with it. The suit filed by the appellant is barred by the law of limitation. The point is answered accordingly.

27. There is no merit in the appeal and it deserves to be dismissed. Appeal is dismissed. Parties to bear their own costs.

Appeal dismissed.