SHIV CHARAN SINGHAL Vs. RAKESH KUMAR

JUDGEMENT

(1.) This regular first appeal impugns the order dated 1st December, 2012 of the learned Additional District Judge allowing the application of the two defendants/respondents No.1 & 2 in this appeal under Order 7 R-11 of Civil Procedure Code (CPC), 1908 and rejecting the plaint in the suit filed by the appellant. The plaintiff/appellant had instituted the said suit inter alia for recovery of possession of property admeasuring 89.4 sq. yds. bearing Khasra No.12/24 & 25 situated in the area of Village-Burari abadi known as Shastri Park Extension, Delhi-84 and for recovery of damages for use and occupation/mesne profits, for permanent injunction restraining the defendants from parting with possession of the property and for declaration of the plaintiff/appellant as the absolute owner of the property. It was the case of the plaintiff/appellant, that the plaintiff/appellant had purchased the said property from one Mr. Pawan Kumar Tyagi vide General Power of Attorney, Agreement to Sell, Will etc. coupled with delivery of possession on 2nd July, 2010; that on suggestion of said Mr. Pawan Kumar Tyagi, the plaintiff/appellant agreed to let out the property to a person selected by Mr. Pawan Kumar Tyagi; that the said Mr. Pawan Kumar Tyagi expired on 4th October, 2011 and when the plaintiff/appellant visited the property thereafter to collect rent, he found the two defendants/respondents to be in possession thereof and who claimed to be the owners thereof under documents executed by Mr. Pawan Kumar Tyagi on 4th April, 2011 in their favour. It was/is the case of the plaintiff/appellant that he is thus entitled to recovery of possession of the property and to the other reliefs. The occasion for the plaintiff/appellant to seek the relief of declaration of his ownership arose since it was the case of the plaintiff/appellant that owing to a typographical error in the documents executed by Mr. Pawan Kumar Tyagi in favour of the plaintiff/appellant, the property had been described as comprised in Khasra No.12/23 & 25, though it was situated in Khasra No.12/24 & 25 and which is the description of the property in the documents in favour of Mr. Pawan Kumar Tyagi also and rights wherein were conveyed to the plaintiff/appellant.

(2.) The defendants/respondents No.1 & 2 applied under Order 7 Rule 11 of CPC pleading that since the plaintiff/appellant was claiming possession as owner on the basis of the documents executed by Mr. Pawan Kumar Tyagi in favour of the plaintiff/appellant and since the said documents did not disclose the property conveyed thereunder to be property No.12/24 & 25, the possession whereof was claimed in the suit, the plaintiff/appellant could not maintain the suit for possession.

(3.) The learned Additional District Judge has allowed the said application holding that the documents of title in favour of the plaintiff being not with respect to the property of which possession has been sought, the plaintiff/appellant on the basis thereof cannot maintain the suit for possession. Qua the plea of the plaintiff/appellant of typographical error in the said document, the learned Additional District Judge in para 18 of the impugned judgment has held that the remedy of the plaintiff/appellant with respect thereto was not by way of suit against the defendants/respondents No.1 & 2. It was thus held that the plaintiff/appellant on the basis of the said documents had no cause of action for the relief of possession.