MUKHINDER SINGH Vs. GURBUX SINGH

JUDGEMENT

(1.) This Regular First Appeal (RFA), filed under Section 96 of Code of Civil Procedure, 1908 (CPC), impugns the judgment of the trial Court dated 14.1.2010 dismissing the suit of the plaintiffs (late plaintiff No.1-Shri Mukhinder Singh and others) who are legal heirs of late Sardar Sohan Singh. By the suit the plaintiffs claimed possession of the suit property being plot No. 8, Friends Colony, New Delhi measuring 4132 sq. yds. alongwith the building constructed thereon. Besides praying for the relief of possession, mesne profits were also claimed. The suit was filed against the defendant no.1/respondent no.1-Sh. Gurbux Singh who was a resident of the suit property and was claiming ownership rights therein. The defendant Nos.2 to 5 are the other legal heirs of late Sardar Sohan Singh. For the sake of convenience, reference in this judgment to the appellants would mean reference to the original plaintiffs. This I am stating because one of the plaintiffs i.e. plaintiff No. 1-Sh. Mukhinder Singh expired during the pendency of the suit and whose legal heirs were consequently brought on record.

(2.) The case of the plaintiffs as set out in the plaint was that their predecessor-in-interest late Sardar Sohan Singh, the father of plaintiff Nos.1 and 2 as also the defendant Nos.2 to 5 (defendant No. 2 being one other son and defendant Nos.3 to 5 being the daughters, plaintiff Nos.3 and 4 are the sons of plaintiff No.1-Sh. Mukhinder Singh and plaintiff No.5 is the son of plaintiff No.2-Sh. Sukhinder Singh), was a member of a Cooperative Society known as Nathu Ram Friends Colony Co-operative House Building Society. Sardar Sohan Singh became a member of this Cooperative society on 16.1.1950. On 14.1.1952 Sardar Sohan Singh was allotted the suit plot admeasuring 4132 sq. yds and an agreement was entered into by Sardar Sohan Singh with the society. It was pleaded that the said Sardar Sohan Singh paid the entire consideration with respect to the plot being the amount of Rs. 11,824/-. Sardar Sohan Singh was stated to have friendly relations with Sir Sobha Singh, who was the father of defendant no.1/respondent no.1 and both of them were also partners in a partnership firm which was engaged in construction (the name of this firm has not come either in the pleadings or in the evidence of the parties). It was further pleaded that Sir Sobha Singh was entrusted by late Sardar Sohan Singh the task to correspond and deal with the society in all matters pertaining to the suit plot and the physical possession of the plot was also accordingly with Sir Sobha Singh. The plans for construction were got sanctioned from appropriate authorities on an application made on behalf of Sardar Sohan Singh and the task of constructing the building was entrusted by Sardar Sohan Singh to Sir Sobha Singh. It was further pleaded that the construction material from which the residential house on the suit plot was made was utilized out of the material of the partnership firm in which Sir Sobha Singh and Sardar Sohan Singh were partners alongwith one G.S. Banga. It was further averred that on the basis of the aforesaid understanding Sir Sobha Singh started construction of the house for and on behalf of Sardar Sohan Singh and after construction, the property was entrusted by Sardar Sohan Singh to Sir Sobha Singh for managing the property in the best interest of Sardar Sohan Singh. It is further pleaded that Sardar Sohan Singh continued to remain the owner of the plot in the records of the society. It is further pleaded in the plaint that the society wrongly transferred the suit plot by a sale deed dated 3.12.1960 in the name of defendant no.1/respondent no.1 on account of fraud and collusion and hence this action of the Society was not binding on Sardar Sohan Singh. It was also alleged that the execution of the sale deed in favour of defendant no.1/respondent no.1 was contrary to the rules and regulations of the cooperative society. It was then pleaded that on or about 14.5.1963 when Sardar Sohan Singh approached the society for executing the sale deed of the suit plot in his name, the society by its letter dated 23.5.1963 informed Sardar Sohan Singh that the sale deed with respect to the suit plot had already been executed in favour of defendant no.1/respondent no.1 on 3.12.1960, and that thus only on 23.5.1963/25.5.1963 the existence of the sale deed dated 3.12.1960 came to the knowledge of Sardar Sohan Singh and the plaintiffs. It was pleaded that defendant No. 1/respondent No.1 after retiring from Indian Army in about 1964 came into the possession of the house constructed on the suit plot (the plot and the building hereinafter referred to together as the 'suit property') and has been living there since then. There was further reference in the suit of certain litigation initiated by the society against the parties to the present suit, however, the same is not material for the disposal of the present appeal. Suffice to say that the said suit filed by the society has been dismissed in default and for non-prosecution. In the said suit, the society had however supported the present defendant No. 1/respondent No.1-Sh. Gurbux Singh. While referring to this suit filed by the society it will be necessary to mention that all the parties to the present suit were the defendants in the suit filed by the society and the exhibit marks of the documents and the depositions of the witnesses referred to in the present suit and in this appeal are those in the society's suit as the society's suit was consolidated with the subject suit and evidence was led in the suit which was filed by the society. The numbering of the exhibited documents which will be thus referred to would be a bit incongruous initially in view of the said position. On the basis of the aforesaid facts, claiming that the cause of action had arisen either in January, 1964 or on 25.5.1963, the subject suit for possession and mesne profits came to be filed.

(3.) The suit was contested by the defendant no.1/respondent No.1. There were various defences, however, the golden thread which runs through the defence on merits was that Sardar Sohan Singh after making initial payment of the cost of the plot, was not in a position to make construction on the plot, and which was a necessary requirement of the terms of the allotment that construction must be completed within a specified period of time, and on account of inability of Sardar Sohan Singh to complete the construction there was consequently a threat of cancellation of the allotment and forfeiture of the moneys paid. It was pleaded that on account of such threat of cancellation of the allotment and forfeiture of the amounts which were paid by Sardar Sohan Singh to the society, Sardar Sohan Singh agreed to mutation of the plot in the name of the defendant no.1/respondent no.1, the son of Sir Sobha Singh, a close friend of Sardar Sohan Singh. In furtherance of the intention/desire of Sardar Sohan Singh for mutation, he wrote his letter dated 4.10.1954 to the society to transfer the membership and the plot in the name of the defendant no.1/respondent no.1. The further case of defendant no.1/respondent no.1 in the written statement was that by a resolution number 3-C passed in the meeting held on 13.10.1954, the society agreed to transfer the suit plot in the name of defendant no.1/respondent no.1 pursuant to the letter dated 4.10.1954 written by Sardar Sohan Singh to the society. This letter dated 4.10.1954 stated that defendant no.1/respondent no.1/Gurbux Singh was the 'nephew' of Sardar Sohan Singh and which relationship was stated inasmuch as, as per the then existing rules of the society (which were subsequently amended to include transfer to a non-blood relation) the plot allotted to a member could only be transferred to a close relation. The defendant no.1/respondent no.1 vide its letter dated 20.10.1954 sent the complete arrears due to the society payable as on that date, being the amount of Rs. 1180/-, and requested the society to transfer the plot in his name. The society by its letter dated 22.11.1954 informed Sardar Sohan Singh about payment of dues by the defendant no.1/respondent no.1 and also of payment of the membership fee with the cost of the share. It was pleaded that by this letter dated 22.11.1954, Sardar Sohan Singh was informed by the society that defendant no.1/respondent no.1 was allotted the suit plot. It was thereafter pleaded in the written statement that Sir Sobha Singh never acted as an attorney or an agent of Sardar Sohan Singh and, the fact of the matter was that Sir Sobha Singh was acting only for and on behalf of his son, the defendant no.1/respondent no.1, with the society. The defendant no.1/respondent no.1 also denied that any funds were spent by Sardar Sohan Singh for construction, much less from the alleged partnership in which Sardar Sohan Singh and Sir Sobha Singh were the partners. It is further pleaded that the payments made by Sardar Sohan Singh totaling to Rs. 50,000/- towards his capital in the partnership firm was an issue of the partnership firm and the same had no co-relation with the ownership of the suit plot or the construction made thereon. It was further pleaded that the society by means of a proper resolution transferred the membership of the society to defendant no.1/respondent no.1, issued a membership certificate, and thereafter executed a sale deed dated 3.12.1960 in favour of defendant no.1/respondent no.1 which was duly registered with the concerned Sub-Registrar. The resolution of the General Body of the society confirming the transfer of the suit property to defendant No. 1/respondent No.1 was stated to be dated 13.12.1959. It was further pleaded that the entire construction was made between the years 1957 to 1959 by late Sir Sobha Singh out of his own funds, for and on behalf of his son-defendant no.1/respondent no.1/Sh. Gurbux Singh. The written statement also denied the alleged plea of fraud and collusion as alleged by the plaintiffs in the plaint. It was further pleaded that as the sale deed was executed in the year 1960, and that right from the year 1960 the plaintiffs were aware of the sale deed having been executed in the name of defendant no.1/respondent no.1 and also of the defendant no.1/respondent no.1 being the owner of the suit property, the suit filed in the year 1975 was hence time barred.