ASHWANI SHARMA Vs. KANTA SHARMA & ORS.

JUDGEMENT

(1.) The plaintiff instituted this suit pleading (i) that late Shri Diwan Chand Sharma, being the paternal grandfather of the plaintiff, was one of the migrants to India from what is now Pakistan and was entitled to rehabilitation; (ii) that after the partition of the country, the Government of India, in the year 1947, under a Defence Rehabilitation Scheme, set-up certain colonies for rehabilitation of the officers of Armed Forces, Navy and Air Force who had migrated to India on partition of the country and one such colony to be set-up was what is today known as Defence Colony, New Delhi; (iii) that as Shri Diwan Chand Sharma was also a Defence personnel who had migrated from Pakistan, he applied for allotment of a plot in the said colony; (iv) that the Settlement Officer, Ministry of Defence allotted plot no.A-132, Defence Colony, New Delhi ad measuring 216.66 sq. yds. in the colony of Defence Colony to the said Shri Diwan Chand Sharma; (v) that the allotment in favour of Shri Diwan Chand Sharma was on the basis of the eligibility certificate issued by the Re-settlement Section, Ministry of Defence on the basis of his qualification as a Defence personnel and was not a mere general allotment; (vi) Shri Diwan Chand Sharma raised construction on the said plot of land and was residing therein along with his wife and two sons namely Col. Ram Prakash Sharma and Sh. Keshwa Nand Sharma (being the father of the plaintiff); (vii) that though Col. Ram Prakash Sharma being the brother of the father of the plaintiff was also a Defence personnel but was not qualified under the Defence Re-settlement Scheme for allotment of any property; (viii) that Shri Diwan Chand Sharma died intestate in Jan., 1977 and his wife also died intestate in March, 1979; (ix) that the father of the plaintiff namely Sh. Keshwa Nand Sharma, by reason of his employment shifted along with his family including the plaintiff to Modi Nagar, Uttar Pradesh; (x) that the father of the plaintiff Shri Keshwa Nand Sharma died on 24th March, 1997 leaving the plaintiff and defendants no.4 to 9 namely Smt. Kamlesh Sharma, Smt. Promila Sharma, Smt. Kavita Malik, Smt. Achla Salwan, Smt. Anjana Sharma and Smt. Poonam Sharma as his heirs; (xi) that the plaintiff and the defendants no.4 to 9 as well as Shri Keshwa Nand Sharma were always given an impression by Col. Ram Prakash Sharma that the property no.A-132, Defence Colony, New Delhi had always been the absolute and self-acquired property of late Shri Diwan Chand Sharma against certain entitlements for rehabilitation as a migrant from Pakistan and that his entitlement was also for compensation for properties held by him in Pakistan; (xii) that the plaintiff and the defendants no.4 to 9 or Shri Keshwa Nand Sharma never had any occasion to demand share in the property; (xiii) that Col. Ram Prakash Sharma died on 25th Jan., 2000; (xiv) that the plaintiff suffered financial setbacks in his business and was in need of funds and the plaintiff and the defendants no.4 to 9 in Jan., 2007 sought partition of the property; (xv) that the plaintiff then was for the first time informed that the property had not only been converted into freehold but had been mutated in the sole name of Col. Ram Prakash Sharma and after his demise in the name of his widow i.e. the defendant no.1 (defendant no.2 Dr. Rajesh Sharma and defendant no.3 Dr. Seema Sen are son and daughter respectively of Col. Ram Prakash Sharma); (xvi) it was then that the plaintiff for the first time learnt that the property had been mutated in the name of Col. Ram Prakash Sharma in the lifetime itself of Shri Diwan Chand Sharma on the basis of some Court orders; (xvii) however no documents were furnished to the plaintiff; (xviii) the plaintiff on enquiry from the Land & Development Office (L & DO) learnt and on 26th June, 2007 received copies of documents of allotment of the property in the name of Shri Diwan Chand Sharma being a migrant from Pakistan and of a decree dated 21st August, 1969 obtained by Col. Ram Prakash Sharma in suit No.298/1969 of the Court of Sub Judge First Class, Delhi declaring Col. Ram Prakash Sharma to be the beneficial owner of the said property; (xix) on further enquiry it was learnt that Col. Ram Prakash Sharma had filed the said suit for declaration against Shri Diwan Chand Sharma claiming that the property was purchased benami for Col. Ram Prakash Sharma in the name of Shri Diwan Chand Sharma and on Sh. Diwan Chand Sharma not contesting the suit it was decreed within 20 days of filing thereof; (xx) Col. Ram Prakash Sharma was not entitled to allotment from the Ministry of Defence in his own name; (xxi) Rs.& DO was not impleaded as defendant to the said suit; (xxii) even though benami transactions were then permitted but Col. Ram Prakash Sharma could not have obtained the decree and the said decree amounts to a fraud on the Rs.& DO and is illegal; (xxiii) that the decree was obtained without knowledge, consent and permission of Shri Diwan Chand Sharma and by misrepresenting facts to him and by exercising undue influence; (xxiv) Shri Diwan Chand Sharma also continued to represent that he was the owner and had also said that Col. Ram Prakash Sharma, on number of occasions, obtained his signatures on blank sheets claiming that the same were required for the Municipal Property Tax Assessment; (xxv) that the said decree is in violation of Sec. 23 of the Indian Contract Act, 1872; (xxvi) though the plaintiff and defendants no.4 to 9 protested to the defendants no.1 to 3 but to no avail; (xxvii) Col. Ram Prakash Sharma was not competent to acquire the property benami through Sh. Diwan Chand Sharma; (xxviii) the plaintiff and the defendants no.4 to 9 in the year 2007 filed a suit in the Court of the Senior Civil Judge, Tis Hazari for declaration that the decree dated 21st Aug., 1969 is null and void and without any effect; (xxix) that the plaintiff and the defendants no.4 to 9, on account of technical objections raised by the defendants no.1 to 3 in their written statement to the said suit, applied for amendment of the plaint therein; (xxx) that the plaintiff and the defendants no.4 to 9 withdrew the said suit filed by them for simple declaration, with permission to file a fresh suit as per law; - the said suit being suit no.178/2007 (New No.8245/2016) was withdrawn by order dated 22nd Sept., 2016 of the Court of the Civil Judge 04 (West), Tis Hazari, Delhi; and, (xxxi) though the plaintiff thereafter approached defendants no.4 to 9 for joining him in this suit but the defendants no.4 to 9 expressed inability.

(2.) The suit came up first before this Court on 27th October, 2016 when, finding that the plaintiff had valued the suit for the of relief of declaration, for purposes of jurisdiction at Rs.5,00,00,000.00 but paid court fees of Rs.20.00 only thereon, it was enquired from the counsel for the plaintiff as to how the valuation of the relief for declaration can be different for the purposes of court fees and jurisdiction. Attention of the counsel was also invited to Sec. 8 of the Suits Valuation Act, 1887. It was further enquired from the counsel for the plaintiff as to how the suit claim for the relief of declaration was within time. Attention of the counsel was invited to Art. 59 of the Schedule to the Limitation Act, 1963 providing limitation of three years for a suit to set aside a decree, commencing from the date when the facts entitling the plaintiff to have the decree set aside first became known to the plaintiff.

(3.) The counsel for the plaintiff stated that the plaintiff, immediately on coming to know of the facts in the year 2007, had instituted the suit aforesaid and has filed this suit after withdrawing the earlier suit with liberty to file again.