JUDGMENT
S.L. Bhayana, J.
1. This is an appeal filed against the order of the Additional District Judge, Delhi dated 14th November, 2002, whereby the learned Additional District Judge has dismissed the suit of the plaintiff/appellant. The brief facts of the case of the plaintiff/ appellant are that the plaintiff filed a suit for declaration, mandatory and permanent injunction against the defendant on the ground that the plaintiff is the owner of plot No. 29, measuring 300 square yards on CSIR House Building Society Limited at Karkardooma, Delhi. The society is presently known as Vigyan Lok, Karkardooma, Delhi. The defendant has wrongly got his name recorded as owner in the records of the above society and other government departments. The plaintiff has also prayed for consequential relief of a decree for possession in respect of the plot in question. The plaintiff has alleged that in the year 1969, Late Sh. Jaswant Rai Wadhwa was a member of CSIR House Building Society as he was a government servant at that time. The said society applied for allotment of land with the Delhi Development Authority for members of the society. The land was allotted by the Delhi Development Authority to the said society for the benefit of its members and Sh. Jaswant Rai Wadhwa was asked to deposit a sum of Rs. 4800/- for the aforesaid plot as its member. The said Sh. Jaswant Rai Wadhwa was not in a position to pay the said amount being cost of the plot and therefore he requested the plaintiff to pay him this amount and offered that he will take this plot in the name of the plaintiff. The defendant, late Sh. Jaswant Rai Wadhwa also assured him that he will purchase half share from the plaintiff by paying Rs. 2400/- at a later date. The plaintiff paid Rs. 4800/- to the said Late Sh. Jaswant Rai Wadhwa by way of a bank draft in the name of the above said society on 22.04.1969 being the total cost of the plot. Thereafter, Late Sh. Jaswant Rai Wadhwa told the plaintiff that he had purchased the plot in the name of the plaintiff from the above said society and after receipt of the letter of agreement and offer of possession, he will inform the plaintiff about the same. The said Jaswant Rai Wadhwa never informed the plaintiff about the delivery of the possession of the plot by the society till his death. After death of Sh. Jaswant Rai Wadhwa, the plaintiff made several requests to defendant No. 1, son of Sh. Jaswant Rai Wadhwa to give him possession of the said plot and defendant Nos.1 and 2 also assured him that they will inform the plaintiff as soon as the possession of the plot is offered to them by the society. But the defendants with malafide intention did not hand over possession of the plot to the plaintiff and they took the possession of the plot from the society and started raising construction on the same. The plaintiff tried to persuade the defendants to stop the construction and hand over the possession of the plot to the plaintiff but they refused to hand over the possession of the plot to the plaintiff and hence this suit.
2. In the written statement filed by the defendants, they took several objections to the effect that this suit was not properly valued for the purposes of court fee and jurisdiction and that this Court had no pecuniary jurisdiction to entertain the present suit. They had stated that even if it is established that Late Sh. Jaswant Rai Wadhwa had borrowed money from the plaintiff, the said money was repaid to the plaintiff by their father. They denied that they had assured the plaintiff that they will deliver the possession of the plot to him since the same is delivered by the society to the defendants. The possession of the said plot was handed over by the society to Late Sh. Jaswant Rai Wadhwa in the early 70’s and he had constructed residential house on this plot in the year 1984-85. Ever since then, the defendants and their family members are living in the said house. This fact has also been in the knowledge of the plaintiff that the construction was raised on the plot and the defendants were living in the said house. They also stated that plaintiff had got no right, title or interest in the property in suit and the suit may be dismissed. In the replication filed by the plaintiff, he reaffirmed the averments raised in the plaint and denied by the defendants in the written statement.
3. On the pleadings of the parties, the learned trial court framed the following issues:
1. Issue No. 1 was reframed to read as whether plaintiff is entitled to declaration as owner of property in suit as alleged?
2. Whether the plaintiff is entitled to the decree of possession and injunction as alleged? OPP
3. Whether the plaint has been signed, verified and instituted by a duly authorised person on behalf of plaintiff?OPP
4. Whether the suit is barred by limitation. OPD-2?
5. Whether this Court has no pecuniary jurisdiction to try the suit? OPD-2.
6. Relief.
4. Both the parties examined their witnesses. After going through the evidence of both the parties, the learned trial court gave its finding on issue No. 3 in favor of the plaintiff and against the defendants. The learned trial court also gave finding on issue No. 5 in favor of the plaintiff and against the defendants as no witness was produced by defendants on this issue. The learned trial court gave finding on issue No. 4 in favor of the defendants and against the plaintiff. The learned trial court gave its finding that the plaintiff has failed to prove that the suit of the plaintiff was within time and held that it was barred by time. The learned trial court also decided issue No. 1 and 2 in favor of the defendants and against the plaintiff and held that the plaintiff has failed to prove that he was the owner of the plot in question merely because he had paid Rs. 4800/- to the society through a bank draft at the request of father of defendant No. 1 and 2. The learned trial court dismissed the suit of the plaintiff.
5. We have heard learned Counsel for the parties and have perused the record carefully. The counsel for the appellant has submitted that Late Sh. Jaswant Rai Wadhwa had assured that in case the appellant pays a sum of Rs. 4800/- to him, he will get the plot allotted in the name of the appellant from CSIR House Building Society, Delhi. On his assurance, the appellant had sent a bank draft of Rs. 4800/- in the name of the above said society vide bank draft dated 22.04.1969 being the total cost of the plot. But, Late Sh. Jaswant Rai Wadhwa got the plot allotted in his own name. Late Sh. Jaswant Rai Wadhwa had also promised that in case the plot is allotted by the society, they will share the plot at the ratio of 50% each and he will pay Rs. 2400/- to the appellant and will purchase half share of the plot from the appellant. But Late Sh. Jaswant Rai Wadhwa did not fulfilll his commitment and instead got the plot allotted in his own name from the society. After allotment of the plot, the defendants raised construction thereon. The defendants are living in the said house. Late Sh. Jaswant Rai Wadhwa never informed the appellant about the delivery of possession of the plot by the society nor he transferred the plot to the appellant and therefore the appellant is entitled to be declared as owner of the said plot with consequential relief for possession of the plot after removing the construction raised on the said plot.
6. On the other hand, learned Counsel for the respondents has submitted that Late Sh. Jaswant Rai Wadhwa had taken a loan of Rs. 4800/- from the appellant which loan had already been repaid to the appellant long back by their father. They have refuted the claim of the appellant that their father had given any assurance to the appellant that in case the payment will be made to him, he will get the plot allotted in the name of the appellant. Their father, Late Sh. Jaswant Rai Wadhwa, was a member of the CSIR House Building Society and the land was allotted to the society only for the benefit of its members. The plot was to be allotted only to the members of the society and there was no question of allotment of the plot in the name of the appellant who was not a member of the society. At the relevant time, their father was short of funds and he had raised a loan of Rs. 4800/- from the appellant which loan has since been repaid by their father. There is no question of the appellant being declared the owner of the plot in question. It is well within the knowledge of the appellant that after the plot was allotted in the name of their father, their father had raised construction over the said plot and the defendants are residing in the said house for the last about 22 years. This suit has been filed beyond a period of limitation and the suit is barred by limitation. They have submitted that the learned trial court has rightly dismissed the suit of the appellant as the appellant had got no right or interest in the suit property.
7. We have gone through the evidence of PW1 Gopal Krishan Mehta, the plaintiff herein. He has not been able to prove on record as to when the plot in question was allotted to Late Sh. Jaswant Rai Wadhwa. He is also not aware as to when the possession of the plot was taken by Late Sh. Jaswant Rai Wadhwa. He is also not aware as to when the construction was raised at the said plot by Sh. Jaswant Rai Wadhwa.
8. Similarly, PW2 Kamal Mehta and PW3 Pankaj Mehta have also not been able to prove these facts before the court in their evidence. All these witnesses do not even know the exact measurement of the plot in question. These witnesses have also failed to prove on record that there was any agreement entered into between the appellant and Late Sh.Jaswant Rai Wadhwa that he will get the plot allotted in the name of the appellant or if the plot is allotted in his name, he will get the same transferred in the name of the appellant. The plaintiff has failed to prove on record any such agreement entered into between the parties. We have gone through the letters Ex.PW1/1 and Ex.PW1/2 which are purportedly written by Late Sh. Jaswant Rai Wadhwa but even these letters do not throw any light on any such agreement entered into between the parties. We have also gone through the affidavit filed by the defendant Mahender Kumar Wadhwa and in this affidavit, he has categorically stated that the plot in question was allotted to his father in the early 70’s and construction was raised on this plot in the year 1984-85. However, in the cross examination, he has stated that the construction was raised in the year 1990 by his father. In the cross examination, he has also stated that in the year 1990, his father and the appellant were doing the business together and it was in the knowledge of the appellant that the plot has been allotted in the name of his father long back and the appellant was also aware of the construction being raised on the said plot. He has neither admitted nor denied that his father had taken loan of Rs. 4800/- from the appellant for the said plot but he has admitted in the affidavit that if any loan was taken by his father from the appellant, the same has been repaid to the appellant by his father.
9. After going through the evidence of both the parties, it has become clear that the plot in question was allotted to Late Sh.Jaswant Rai Wadhwa in the early 70’s. It has been proved on record that there was no formal agreement entered into between the parties that this plot will be allotted in the name of the appellant or this plot will be transferred in the name of the appellant after the same is allotted to Late Sh. Jaswant Rai Wadhwa. The appellant has also not been able to prove on record that there was some understanding between the parties that this plot will be allotted in the name of the appellant nor it has been proved on record that on payment of Rs. 2400/- by Late Sh. Jaswant Rai Wadhwa to the appellant, both of them will become 50% owner of the said plot. However, in the evidence of Mahender Kumar Wadhwa, it has come that the loan taken for Rs. 4800/- by Late Sh. Jaswant Rai Wadhwa has been returned to the appellant. But the defendant has failed to prove as to when this loan was returned to the appellant. Admittedly, the appellant had given a sum of Rs. 4800/- to Late Sh. Jaswant Rai Wadhwa for purchase of the plot from the society by way of bank draft which is admitted in the letters written by Late Sh. Jaswant Rai Wadhwa to the appellant. But this amount has not been returned by Late Sh. Jaswant Rai Wadhwa or any of the defendants to the appellant. Admittedly, this suit filed by the plaintiff for declaration, injunction and possession is time barred as the plot in question was allotted to Late Sh. Jaswant Rai Wadhwa in the early 70’s i.e. in the year 1974-75 whereas this suit had been filed on 27.10.1998 i.e. after 26 years of the allotment of the plot. So, the suit of the plaintiff for declaration and injunction and consequential relief of possession is barred by limitation. However, the equity demands that the defendants should have returned the money which was borrowed by their father from the appellant. We maintain that the suit of the appellant is barred by limitation and is not maintainable. The suit has been rightly dismissed by the learned trial court being barred by limitation and on other grounds also. However, in the interest of justice, we order that the appellant is entitled to refund of Rs. 4800/- which he had advanced as loan to Late Sh. Jaswant Rai Wadhwa, father of the defendants.
10. We, therefore, pass a decree in favor of the plaintiff/appellant and against the defendants/respondents in the sum of Rs. 4800/- along with interest @ 18% per annum from 22.04.1969 till realisation. With these observations, the appeal of the appellant is partly allowed. The parties are directed to bear their own costs.