ARUN FOTEDAR Vs. JITNDER FOTEDAR

JUDGEMENT

(1.) Challenge in this revision petition filed under Article 227 of the Constitution of India is to the order dtd. 20/10/2022 (Annexure P-1) passed by learned Civil Judge (Junior Division), Gurugram, whereby application moved by the petitioner-defendant No.1 under Order VII Rule 11 (a) (b) (c) (d) read with Sec. 151 CPC for rejection of the plaint, has been dismissed.

(2.) The parties herein are being addressed as per their original status in the suit.

(3.) Learned senior counsel appearing on behalf of the petitioner- defendant No.1 has argued that the plaintiff has not filed any document to show any pre-existing right in the suit property or even any document to show any money spent on the construction and contributions made by him and even failed to disclose the source from where the alleged funds were arranged for raising construction. Plaintiff has filed suit for declaration to the effect that he is co-owner to the extent of half portion of the suit 3 of 14 Neutral Citation No:=2024:PHHC:064609 Civil Revision No.684 of 2023-4-2024:PHHC:064609 property and in the paragraph of cause of action, it has been stated that cause of action accrued to the plaintiff in the year 2002-2004 when he had spent money on construction which was completed in 2004. So, the right to claim half share is reckoned from 1/1/2005. Period of limitation seeking declaration under Article 58 of the Limitation Act is three years from the accrual of cause of action, whereas suit was filed in the year 2021 and thus, suit is barred by limitation. The subsequent event regarding execution of gift deed/transfer deed or the knowledge of the same in June, 2020 does not extend the period of limitation. The case of the plaintiff is mainly based on the fact that he spent money on the construction of suit property, so he is the owner to the extent of half share in the suit property. No right, title or interest in any immovable property can be created, the value of which is more than Rs.100.00 unless the document is duly registered. Even no such document has been placed on the file. The suit is also barred by the provision of Sec. 4 of the Benami Transaction (Prohibition) Act, 1988. The plaintiff is claiming that defendant No.2 was holding his half share as benami property as the money for construction of suit property was spent by the plaintiff. Since the plaintiff has not claimed the consequential relief of possession, suit is hit by the provision of Sec. 34 of the Specific Relief Act, 1963. The plaintiff has sought declaration and cancellation of the gift deed/transfer deed dtd. 22/7/2014 but no cause of action had accrued to the plaintiff to challenge the same since he had no pre-existing right in the suit property. Defendant No.2, who has executed transfer deed, has not alleged any fraud and has not filed any such suit. The prayer qua the challenge to transfer deed dtd. 22/7/2014 is liable to be rejected. The plaintiff has affixed court of Rs.200.00 only. The valuation of the suit property is mentioned as Rs.20.00 lakhs and the plaintiff has sought declaration with regard to half share in the suit property, so he is liable to pay court fee of Rs.1,07,000.00. In support of his argument, learned counsel has relied upon T. Arvindum Versus TV Satyapal, 1977(4) SCC 467; Ragvendra Sharan Singh Versus Sri Ram Prasad Singh, AIR 2018 SCC 1470; and Ramisethi Venkalarna Versus Masyam Jamal, 2023 ARC 42.