ASHOK KUMAR Vs. RUSTAM AND ORS.

JUDGEMENT

(1.) This appeal under Sec. 96 of the Code of Civil Procedure (CPC), 1908 impugns the order dated 4th April, 2015 of the Court of Sh. Devender Kumar Jangala, Additional District Judge -07/West/Delhi of dismissal in limine as barred by time Suit No. 23/2015 filed by the appellant for the reliefs of (i) declaration of the title of the appellant/plaintiff to property no. B -425, JJ Colony, Raghubir Nagar, New Delhi; (ii) of possession of the aforesaid property; (iii) of injunction restraining the respondents/defendants from transferring alienating or creating third party rights in the property; and, (iv) for recovery of damages for use and occupation.

(2.) It was the averment of the appellant/plaintiff in the plaint (i) that he had purchased the said property through the medium of Agreement to Sell, Power of Attorney and Will etc. on 7th September, 1994 and was put into possession thereof; (ii) that on request of the seller Sh. Nathu Ram, the property was let out to him vide Rent Agreement/Rent Note of the same date i.e. 7th September, 1994; (iii) that the said Shri Nathu Ram died and his family continued to stay in the property; (iv) that the appellant/plaintiff renovated the first floor and constructed the second floor; (v) that the widow of Sh. Nathu Ram on 19th April, 2002 vacated the first floor and was put into possession of the second floor and the appellant/plaintiff came into possession of the ground, first and third floors of the property and had let out the first and third floors of the property; (vi) that on 19th February, 2003 the locks of the first and third floors were broken open by some miscreants and of which First Information Report (FIR) was lodged and on enquiry the respondents/defendants were found in possession; (vii) that on 9th June, 2003 the respondents/defendants also took the forceful possession of the ground floor; (viii) that the respondents/defendants instituted a suit for injunction against the appellant/plaintiff and in which suit an issue of title also was framed; (ix) however the learned Civil Judge before whom the said suit was pending while hearing arguments in the said suit on 12th May, 2014, with the consent of the counsels and for the reason of decision on issue of title in suit for mere injunction being not necessary, deleted the issue of title and decided the said suit vide judgment dated 31st July, 2014 against the defendants; and, (x) that since the issue of title had been framed in the said suit, the appellant/plaintiff could not have filed the suit for possession earlier.

(3.) The learned Addl. District Judge in the impugned order has held that since as per the appellant/plaintiff also the respondents/defendants had taken forceful possession on 19th February, 2003, the cause of action for the relief of declaration arose in 2003 and the suit filed in the year 2015 was beyond the period of limitation of three years and that the pendency of the suit for permanent injunction did not extend the period of limitation.