RAM PRAKASH GUPTA Vs. RAJIV KUMAR GUPTA

JUDGEMENT

(1.) Shri Ram Prakash Gupta filed a suit for declaration and in alternative for possession of a portion of property No. 8, Nizammudin Basti, New Delhi against Sh Rajiv Kumar Gupta and others. According to the plaintiff, Sh Om Prakash Gupta his predecessor had purchased a land measuring 186 sq.yards in Nizammuddin Basti on 2.9.1957 in the name of the plaintiff who was a minor at the relevant time. The father of the plaintiff was working in business and had sufficient funds in his business account. The plot was lying vacant even in the year 1965 when the father of the plaintiff died. The plaintiff was suffering from a disability and was a handicapped person as there was a defect in one of his legs and could not move freely. The father of the plaintiff had purchased various properties and even earlier to 1966 all the brothers were residing in the house at Chawri Bazar. It was further pleaded by the plaintiff that none of the brothers or their heirs had any interest in the property at Nizamuddin Basti, however, Sh Inder Prakash, the elder brother of the plaintiff with ulterior motive filed a suit bearing No. 183/74 to the effect that Sh Rajiv Kumar Gupta is the owner of the first floor of the suit property. Plaintiff had no knowledge of filing of the said suit which was finally decreed on 15.2.76 and the plaintiff did not come to know about the same even after passing of the said decree. According to the plaintiff, he had let out the first floor of the said house to Aseema Architect in 1969 and the defendant had nothing to do with the said property. The decree passed in suit No. 183/74 came to the knowledge of the plaintiff in 1986 and he could not take immediate steps because of death of his elder brother as well as because the details of the suit were not available to him. It was only when the suit No. 424/89 titled as Aseema Architect vs. Ram Prakash was filed, the copy of the said decree was placed on record. Thereafter, he took steps at the earliest and filed the present suit for declaration and in alternative for possession. While claiming the relief of declaration, the plaintiff has prayed that the decree dated 5.2.76 passed in suit No. 183/74 as well as the decree dated 19.1.76 passed in suit No. 133/74 be declared as of no consequence and null and void. In alternative, he prayed for possession of the said property. This suit was contested by the defendants who denied the claim of the plaintiff as well as took an objection that the suit of the plaintiff was barred by time. The parties even led evidence in the said suit.

(2.) During the pendency of the suit, the defendants filed an application under Order VII Rule 11 CPC. This application was contested by the plaintiff and vide a detailed order dated 20.2.06, the learned Trial Court allowed the said application and while holding that the suit was barred by time, rejected the plaint and dismissed the suit giving rise to the present appeal.

(3.) We have heard the learned counsel appearing for the appellant at great length who mainly challenged the findings recorded by the Trial Court on the ground that there was no occasion for the Court to deal with the application under Order VII Rule 11 CPC at that stage and furthermore the suit was not barred by time as the particulars of the suit came to the notice of the plaintiff only in the year 1989 and the suit was filed in the year 1990 as such the suit was not barred by time.