{"id":23432,"date":"2010-11-23T00:00:00","date_gmt":"2010-11-22T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/o-p-bhalla-anr-vs-jagat-singh-arya-ors-on-23-november-2010"},"modified":"2016-12-18T21:21:00","modified_gmt":"2016-12-18T15:51:00","slug":"o-p-bhalla-anr-vs-jagat-singh-arya-ors-on-23-november-2010","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/o-p-bhalla-anr-vs-jagat-singh-arya-ors-on-23-november-2010","title":{"rendered":"O P Bhalla & Anr vs Jagat Singh Arya & Ors on 23 November, 2010"},"content":{"rendered":"
Delhi High Court<\/div>\n
O P Bhalla & Anr vs Jagat Singh Arya & Ors on 23 November, 2010<\/div>\n
Author: Mool Chand Garg<\/div>\n
*                IN THE HIGH COURT OF DELHI AT NEW DELHI\n\n+                           FAO.No.253-57\/2005\n\n%                                                Reserved On: 11.11.2010\n                                                  Decided On: 23.11.2010\n\nO.P. BHALLA & ANR.                                           .... Appellants\n                       Through: Mr.Atul Nigam, Adv.\n\n                                  Versus\n\nJAGAT SINGH ARYA & ORS.                        .... Respondents\n                 Through: Mr. Astender Kumar, Adv.\n\nCORAM:\nHON'BLE MR. JUSTICE MOOL CHAND GARG\n\n1.     Whether reporters of Local papers may be                  Yes\n       allowed to see the judgment?\n2.     To be referred to the reporter or not?                    Yes\n3.     Whether the judgment should be reported in                Yes\n       the Digest?\n\n:      MOOL CHAND GARG,J.\n<\/pre>\n
1.     This appeal arises out of an order passed by the learned ADJ in
\nan application filed by respondent No.1 under Order 39 Rule 1 and 2
\nCPC in a Suit bearing No.494\/2004 which is the suit for declaration
\nand permanent injunction against the appellants, Sh. O.P. Bhalla & Sh.
\nJ.R. Bhalla whereby the learned ADJ restrained the appellants from
\ndispossessing respondent No.1 from the suit property.\n<\/p>\n
2.     Vide impugned order, the learned ADJ has passed the following
\nOrders:\n<\/p>\n
       “16. The plaintiff is in settled possession of the suit
\n       property since 1988. He has made two and half storey
\n       building by spending a lot of money on it. No case was filed
\n       during lifetime of Smt. Ishwari Devi and only after her death
\n       the case was filed. There is strong prima facie case in favour
\n       of the plaintiff and the balance of convenience is also in
\n       favour of the plaintiff and if the plaintiff is dispossessed of
\n       the suit property he is going to suffer irreparable loss.
\n       Dispossession of the plaintiff is stayed till the dispose of the
\n       suit.\n<\/p><\/blockquote>\n
       17. Nothing herein contained shall testamount to any
\n       opinion on the merits of the facts of the case.”\n<\/p><\/blockquote>\n
FAO No.253-57 \/2005                                             Page 1 of 11<\/span><\/p>\n
 3.     According      to   the   appellants,   the   impugned   order   is    not
\nsustainable as the said order is directly in conflict with rights and
\ninterest of the appellants as determined and decided vide judgment and
\ndecree granted in their favour in a Suit No.973\/2002 titled as \u201eSh. O.P.
\nBhalla & Anr. Vs. Ms. Sudesh Sharma & Ors. with respect to property
\nbearing No.RZ-273, Gali No.17, Tughlakabad Extension, New Delhi
\n(hereinafter referred to as the Suit Property). By way of interim order,
\nthe lower Court has not only gone contrary to law but has also
\nadversely denied the facts of the judgment and decree in the aforesaid
\nSuit which was instituted as back as in the year 1988.\n<\/p>\n
4.     Briefly stating the facts giving rise to the filing of the Suit in
\nquestion by the respondent No.1 against the appellants are, that the
\nsuit property belongs to their deceased mother Smt. Ishwari Devi who
\nexpired while being in hospital in May, 1988.           After her death, they
\nbecame her legal heir and came into possession of the aforesaid
\nproperty. Sh. S.K.Sharma and Sh. K.K. Khanna conspired to dispossess
\nthe deceased Ishwari Devi in May, 1988 and took possession of the suit
\nproperty without the consent of Smt. Ishwari Devi or the appellants in
\ncollusion with one of the brothers of the appellants, Sh. P.P. Bhalla and
\nfailed to restore the same to the appellants despite the request made by
\nthem. Thus, the appellants filed Suit No.973\/2002 under Section 6 of
\nthe Specific Relief Act challenging their illegal dispossession. Initially
\nthe said suit was contested by Sh. S.K. Sharma while Sh. K.K. Khanna
\nand Sh. P.P. Bhalla were proceeded ex parte. A written statement was
\nfiled by Sh. S.K. Sharma where incoherent defences were taken.                    In
\npara 9 of the written statement Sh. S.K. Sharma had pleaded that:\n<\/p>\n
       “The defendant No.1 has already raised as single storey
\n       construction and this construction continued for about two
\n       months immediately after defendant No.1 was put in
\n       possession of the western site of the property in suit
\n       No.1988.     Similarly, the said Shri J.S. Arya who in
\n       occupation of the eastern side of the property in suit has
\n       already raised single storeyed construction soon after he was
\n       put in possession in May, 1988 by defendant No.1”\n<\/p><\/blockquote>\n
5.     During the pendency of the suit, Sh. J.S. Arya moved an
\napplication under Order 1 Rule 10 in the Suit No.973\/2002 which was
\ndismissed on 10.08.1993 by Sh.J.B. Goel, ADJ, Delhi.                 After the
\nFAO No.253-57 \/2005                                                Page 2 of 11<\/span>
\n dismissal of the application Sh. J.S. Arya, respondent No.1 did not take
\nany subsequent legal action by challenging the dismissal order. And as
\nsuch, the said order became final. As per law, it is on 10.08.1993 that
\nwith the dismissal of the application under Order 1 Rule 10, the first
\ntime that right to sue had first accrued in favour of respondent No.1.
\nThe said respondent with the dismissal of its application under Order I
\nRule 10 has lost the remedy to challenge, after expiry of three years by
\na declaratory from the date of dismissal of the application under Order I
\nrule 10 CPC.\n<\/p>\n
6.     It has also been pleaded by the appellants that even though
\nSh.J.S. Arya was not made a party to the aforesaid suit but he was
\nsolely prosecuting and conducting the matter. In Suit No.973\/2002, it
\nis the respondent, J.S. Arya who has solely examined himself as a
\nwitness. The important aspect which is to be seen is from the fact that
\nthe entire case as what is being pleaded in the present suit has already
\nbeen narrated and put forward in the Suit No.973\/2002.               Thus, the
\ndocuments on the basis of which Sh. J.S. Arya is relying in the present
\nSuit has already been discussed and taken care of in the previous suit,
\nwhich has not found favour with the Court and the suit filed by the
\nappellant     has     been   accepted   whereby   the   defendants    in   Suit
\nNo.973\/2002 have been directed to restore the possession of the suit
\nproperty and the interest of respondent No.1 is affected by the principle
\nof lis-pendens as discussed in the judgment. Rather in para 29 of the
\njudgment in Suit No.973\/2002, the Court has held that the documents
\nproduced by the witness (J.S. Arya) contradicts the oral testament of
\nthe witness and as such the same were not trustworthy. It is a matter
\non record that appellant neither challenged the order dismissing his
\napplication under Order I Rule 10 CPC nor filed a suit for specific
\nperformance or a declaration within a period of 3 years despite denial of
\nexecution of the documents now relied upon by respondent No.1 in the
\nSuit in question asserting his title in the property and, therefore, the
\nright, if any, in favour of respondent No.1 stood extinguished on
\naccount of the law of limitation considering provisions contained under
\nOrder XXI Rule 58 of the CPC.\n<\/p>\n
FAO No.253-57 \/2005                                              Page 3 of 11<\/span><\/p>\n
 7.     In order to enforce the judgment\/decree passed in                  Suit
\nNo.973\/2002, the appellant field execution proceedings. To thwart the
\nfruits of the judgment\/decree in Suit No.973\/2002 after a span of over
\n13 years from the date of dismissal of the application under Order I
\nRule 10 CPC, the respondent by means of the present suit which is
\ninstituted as in November, 2004 is trying to upset the judgment passed
\nin suit referred above by seeking the following reliefs:-\n<\/p>\n
       “To pass a decree declaring the plaintiffs (respondent) as an
\n       absolute owner of the suit property. This Hon\u201fble Court may
\n       further be pleased to pass permanent injunction restraining the
\n       defendants, its agents, representatives, servants from interfering
\n       and dispossessing the plaintiff from the suit property.”\n<\/p><\/blockquote>\n
8.     It has been pleaded by the appellants that the present suit is not
\nmaintainable on facts and law.       The suit seeking declaratory relief,
\nhaving filed beyond a period of three years from the day the right to sue
\nfirst accrued, is barred by Article 58 of the Limitation Act, 1963.
\nBesides, the plaint is filled with incongruities and substantively no relief
\ncan be granted to the respondent\/plaintiff.         There cannot be any
\nreliance upon the documents by itself as their genuineness is in doubt,
\nbesides, a clear finding having come on record of their not coming from
\nthe genuine source in Suit No.973\/2002.           But, the ld. Court has
\ncompletely disregarded the aspect of the Law of limitation by giving it a
\nnew twist to its application and has ignored the fact that no reliance
\ncould be placed upon the documents as filed in the present suit as the
\nfinding has already come of their affect in Suit No.973\/2002. As the
\nsuit is factually and legally bad, no prima facie case is made out and it
\nis the appellant who after spending nearly 15 years in litigation over
\ntheir rights and having succeeded in now being scuttled by a false and
\nfrivolous suit. The irreparable loss, injury and balance of convenience
\nlies in favour of the appellant.\n<\/p>\n
9.     I have heard the submissions from both the sides. I have also
\nseen the averments made by the respondent in his application filed
\nunder Order 1 Rule 10 CPC, certified copy whereof has been placed on
\nrecord by the appellant and is available at the case file on page 129.
\nThe said application reads as under:-\n<\/p>\n
FAO No.253-57 \/2005                                             Page 4 of 11<\/span><\/p>\n
        “1.   That the applicant J.S. Arya S\/o late Sh. Fateh Singh
\n       occupied half portion of premises bearing No.RZ-273, Gali
\n       No.17, Tuglakabad Ext. Kalkaji, New Delhi measuring 100
\n       sq. yds. As he purchased the land in dispute from Smt.
\n       Ishwari Devi w\/o Sh. C.L. Bhalla on 16.05.1988 for which
\n       she had already executed Will, General Power of attorney,
\n       Agreement to Sell signed by the witnesses on the same day
\n       as the payment was made for consideration of sale of the plot
\n       through bank draft amounting to `30,000\/- in the name of
\n       Smt. Ishwari Devi in Bank of Timarpur on 26.5.88. The
\n       cheque was issued from Bank of Maharashtra, Alakhnanda
\n       Branch, Delhi to her and remaining amount was paid in
\n       cash to her and plaintiffs in the presence of witnesses on the
\n       same day.\n<\/p><\/blockquote>\n
       2.      That the applicant took the possession of the plot on
\n       16.5.88 and raised construction upto 3 storeyed and has
\n       been residing with his family members and has sufficient
\n       documents including ration card, house tax bill, electricity
\n       bills, personal letters etc.<\/p>\n<\/blockquote>\n
       3.    That the applicant has come to know about pendency
\n       of the present case only on 11.02.1992 through Sh. S.K.
\n       Sharma who visited the premises alongwith the persons to
\n       whom he sold the remaining portion of the premises in
\n       dispute recently who visited the premises in dispute on
\n       11.02.1992 alongwith Smt. Sudesh Sharma and told about
\n       pendency of the case. Hence, applicant is the necessary
\n       party to contest the case.\n<\/p><\/blockquote>\n
             It is, therefore, respectfully prayed that the applicant
\n       may be added as defendant in the abovesaid proceedings in
\n       the interest of justice.”\n<\/p><\/blockquote>\n
10.    This application was replied to by the appellants, the reply is
\navailable at page No.131. In this reply while referring to the case of
\nrespondent No.1, it was specifically denied that he was ever in
\noccupation of any portion or part of the suit property on the date of
\nfiling of the suit.   It was pleaded that the deceased mother of the
\nappellants was dispossessed by Sh. S.K. Sharma and Sh. K.K. Khanna
\nwithout her consent and otherwise without following due course of law
\nin the concluding week of May, 1988 when she was struggling for life.
\nIt was specifically denied that respondent purchased a portion of the
\nland from their deceased mother on 16.05.1988. Admittedly, she was
\nadmitted in the AIIMS on 09.05.1988 as a seriously ill patient and was
\nkept in ICU, in such a situation the question of executing any Will,<\/p>\n
FAO No.253-57 \/2005                                           Page 5 of 11<\/span>
\n GPA, agreement to sell relied upon by the respondent cannot be even
\nthought of or imagined.      It was specifically stated that the alleged
\ndocuments were patently fake, fabricated and forged.\n<\/p>\n
11.    Some other averments made in the reply also shows that insofar
\nas the case set up by the respondent in the suit for declaration which
\nhas been filed by him subsequent to the decision in the Suit filed by the
\nappellants were specifically denied. These averments are:\n<\/p>\n
       “The application who claims title on the basis of the said
\n       documents has incurred penalty for fabricating false
\n       documents for the purpose of being used in judicial
\n       proceedings.   It is false to allege that any amount of
\n       `30,000\/- was paid to the deceased mother on 26.5.1988
\n       when she never came out of the Hospital after being
\n       admitted on 9-5-88. The deceased died at the Hospital on
\n       30.05.1988.    The witness who may have signed the
\n       documents are fake.\n<\/p><\/blockquote>\n
       2.     Para 2 of the application is denied. The question of
\n       the applicant taking possession of the portion of the plot on
\n       16.5.1988 from the deceased mother does not arise when
\n       she was admitted to the hospital on 9.5.1988 and died on
\n       30.5.1988. It is also false to allege that the applicant raised
\n       a three-storeyed construction on the plot. It appears that
\n       the applicant in connivance with the defendant and in utter
\n       violation of the injunction order issued by the learned Court
\n       dated 23.9.1988 has raised the said construction. The
\n       defendants and the applicant through whom he claims has
\n       incurred the penalty of contempt for which the plaintiffs are
\n       moving a separate application. It appears that the applicant
\n       in connivance with the defendants, in order to confuse and
\n       disgress the issues involved in the suit has mentioned
\n       himself to be interested in the property on the basis of false
\n       and fake documents.\n<\/p><\/blockquote>\n
       3.    Para 3 of the application is false and is denied. The
\n       applicant, knew about the suit and is simply acting for and
\n       on behalf of the defendants in order to somehow defeat the
\n       claim of the plaintiff. It is submitted that if ever, the
\n       applicant is in possession of the property he is there as a
\n       trespasser and is bound to surrender possession of the
\n       property alongwith the construction thereon in execution of
\n       the decree that shall be passed, and will be bound by the
\n       principles of lis-pendence, which is without prejudice to
\n       such contempt proceedings which the plaintiffs may take
\n       against the applicants and the defendant. The applicant has
\n       further mentioned Smt.Sudesh Sharma who has got nothing
\n       to do with the suit property. She is none else but the wife of
\n       defendant No.1 who is in possession. The applicant is<\/p>\n
FAO No.253-57 \/2005                                            Page 6 of 11<\/span>
\n        neither necessary nor a proper party and the application is
\n       designed to delay and digress the suit.\n<\/p><\/blockquote>\n
12.    A bare reading of the reply filed by the appellants to the
\napplication under Order I Rule 10 of the CPC which was filed on
\n17.11.1992 coupled with the order dated 12.02.1992 passed on the
\napplication filed by the respondent extinguished the rights, if any, of
\nrespondent No.1 to seek declaration of his title commenced. Before I go
\nfurther, I may simply take note of the order which has been passed by
\nthe learned ADJ in Suit No.97\/1990 while disposing of the application
\nfiled by respondent No.1 under Order I Rule 10 CPC:-\n<\/p>\n
       “7.    On the pleadings of the parties as manay as 8 issues
\n       were framed on 13-9-1989 and therafter the plaintiffs has
\n       examined PW-1, PW-2 and PW-3(partly) and this application
\n       was moved on 12-2-1992, i.e. after about 3 \u00bd years of the
\n       institution of the suit and the only explanation is that he
\n       was not aware of this suit till 11-2-1992, when Sh. S.K.
\n       Sharma (who is defendant No.1) visited the premises
\n       alongwith his wife and told about the pendency of the case.
\n       The question is, whether the deceased had executed any
\n       agreement to sell and other documents for consideration on
\n       16-5-1988 and had delivered possession of any portion of
\n       the property to the applicant? Neither the applicant, nor the
\n       defendant No.1 have placed on record any such documents
\n       and as such in the absence of any such documents, there is
\n       no material prima facie to be satisfied about the bona fides of
\n       the case of the applicant, the plausibility of his claim and the
\n       genuineness of his interest in the litigation. The applicant
\n       has come at a very late stage of the case and this also is
\n       indicative of lack of bona fides on his part. The plaintiffs
\n       have opposed the application of the applicant. It was held in
\n       AIR 1969 Punjab & Haryana 57 that as a rule the Court
\n       should not add a person as a defendant in a suit when the
\n       plaintiff is opposed to such addition. The reason is that the
\n       plaintiff is the \u201edominus litis\u201f. He is the master of the suit.
\n       He cannot be compelled to fight against a person against
\n       whom he does not wish to fight and against whom he does
\n       not claim any relief. This principle has also been followed in
\n       AIR 1977 Oriss 138, Meghraja Aggarwala Vs. Radhey Shyam
\n       Aggarwal, where it has been further held that the plaintiff
\n       must be allowed full discretion to put his case in the manner
\n       he likes and should not be forcibly involved into
\n       controversies with persons against whom he does not claim
\n       any relief. The plaintiffs specifically alleged that it was the
\n       defendants No.1 to 3 who had taken wrongful possession of
\n       the premises and the applicant is in collusion with them and
\n       would be bound by the decree that may be passed against
\n       them by the rule of lis pendecis. They deny the possession
\nFAO No.253-57 \/2005                                             Page 7 of 11<\/span>
\n        of the application when suit was filed.           In these
\n       circumstances, it cannot be said that the applicant is
\n       necessary or a proper party and he cannot be forced upon
\n       the plaintiffs with whom they do not want to fight. This
\n       application thus has no merit and is dismissed with costs of
\n       `100\/- ”\n<\/p><\/blockquote>\n
13.    In these circumstances, the order of the learned ADJ impugned
\nbefore me in this case needs to be scrutinized. Before doing that, I may
\ntake note of the issues which has been framed in this case by the
\nlearned ADJ and which are as follows:\n<\/p>\n
       1. Whether the Suit is bad for limitation? OPD\n<\/p><\/blockquote>\n
       2. Whether the documents such as agreement to sell,
\n          affidavit, Will and GPA are forged and fabricated
\n          documents? OPD\n<\/p><\/blockquote>\n
       3. Whether the plaintiff is entitled to the decree of
\n          declaration and permanent injunction as prayed for? OPP\n<\/p><\/blockquote>\n
       4. Relief.\n<\/p><\/blockquote>\n
14.    The basis of granting injunction to respondent No.1 by the
\nimpugned order have been narrated by the learned ADJ in paragraphs
\n2 to 8 of the impugned order which are incorporated hereunder for the
\nsake of reference:\n<\/p>\n
       “2.   In brief the case of the plaintiff is that he is owner of
\n       the property bearing No.RZ-273\/17, Tughlakabad Extn.,
\n       New Delhi measuring 100 Sq. yds. Having purchased the
\n       same from Smt. Ishwari Devi wife of late Sh. Chuni Lal on
\n       16.5.1988. The documents GPA, agreement to sell, Will,
\n       receipt and affidavit etc. were duly executed.\n<\/p><\/blockquote>\n
       3.    It is further averred that deceased Smt. Ishwari Devi
\n       was the mother of defendants No.1 and 2 and late Sh. Puran
\n       Parkash Bhalla who died in 2001. The defendant No.3 is
\n       widow of Sh.P.P. Bhalla and daughter in law of deceased
\n       Smt. Ishwari Devi. The defendants No.4 and 5 are the sons
\n       of Late Sh. P.P. Bhalla and grand sons of deceased Smt.
\n       Ishwari Devi.\n<\/p><\/blockquote>\n
       3.    It is further averred that late Smt. Ishwari Devi was
\n       the owner of plot measuring 200 sq. yds. having purchased
\n       the same for `6,800\/- from Sh. Som Nath son of Sh. Boota
\n       Ram R\/o 444, Rampura, Delhi as General Attorney of Har
\n       Lal s\/o Sh. Kure, R\/o Tughlakabad, New Delhi vide
\n       agreement to sell, receipt, affidavit etc. dated 28.10.1977.
\n       Two temporary rooms latrine and bath room with boundary
\n       wall were constructed on the said plot.\n<\/p><\/blockquote>\n
FAO No.253-57 \/2005                                            Page 8 of 11<\/span><\/p>\n
        4.     It is further averred that in the year 1988 plaintiff had
\n       been living with his family in 50 sq. yds. bearing No.RZ-
\n       228\/19, Tughlakabad Extn., New Delhi. In the month of
\n       April, 1988, the plaintiff came to know through Bajrank
\n       Property Dealter that plot No.273\/17, Tughlakabad Extn.,
\n       New Delhi measuring 200 sq. yds. was available for sale. On
\n       further enquiry from the said dealer the plaintiff came to
\n       know that plot was owned by one Smt. Ishwari Devi and her
\n       son Sh. O.P. Bhalla and Sh. P.P. Bhalla neede money for her
\n       mother\u201fs treatment. As there was no customer available for
\n       big plot of 200 sq. yds. The said plot was divided into two
\n       plots of 100 sq. yds. each.\n<\/p><\/blockquote>\n
       5.    It is further averred that a plot of 100 sq. yds on the
\n       eastern side with temporary structure of two rooms was sold
\n       to the plaintiff by Smt. Ishwari Devi through her sons
\n       involving the said property dealer to the plaintiff for a
\n       consideration of `30,000\/- and the remaining half plot
\n       measuring 100 sq. yds on western side with bath and latrine
\n       was sold in favour of Smt. Sudesh Sharma, w\/o Sh. S.K.
\n       Sharma, R\/o RZ-274\/17, Tughlakabad Extn., New Delhi for
\n       a sum of `30,000\/-\n<\/p><\/blockquote>\n
       6.   It is further averred that the payment was made by
\n       way of two bank drafts bearing No.155358 and 155359
\n       which were got encashed by Smt. Ishwari Devi.\n<\/p><\/blockquote>\n
       7.     The document such as GPA, Will, agreement to sell
\n       etc. were delivered to the plaintiff and the possession was
\n       also handed over to the plaintiff. The plaintiff got the old
\n       structure demolished and constructed two rooms on the
\n       ground floor in August, 1988 and started residing therein.
\n       He got a ration card and is paying House Tax in respect of
\n       the suit property since 1988-1989. The name of the plaintiff
\n       and his family members is also got incorporated in the voter
\n       list and a telephone connection is also installed there since
\n       1990 in the name of his wife. The plaintiff thereafter made
\n       constructions from time to time and has constructed two
\n       and half storeyed building there and let out first and second
\n       floor to different tenants.\n<\/p><\/blockquote>\n
       8.     It is further averred that on 1.2.1992 plaintiff came to
\n       know from late Sh. S.K. Sharma husband of Smt. Sudehs
\n       Sharma that the legal heirs of late Smt. Ishwari Devi have
\n       filed a false suit though Smt. Sudesh Sharma has already
\n       sold the portion purchased by her from Smt. Ishwari Devi.
\n       Thereafter, plaintiff moved an application U\/o 1 Rule 10 CPC
\n       for being impleaded as party in that case. However, the
\n       same was dismissed. Ultimately the suit filed by the legal
\n       heirs of Smt. Ishwari Devi was decreed by Ld. Civil Judge on
\n       19.08.2004 and the plaintiff apprehended that he might be<\/p>\n
FAO No.253-57 \/2005                                             Page 9 of 11<\/span>
\n        dispossessed from the suit property of which he was lawful
\n       owner and the suit for declaration and injunction was filed.”.\n<\/p><\/blockquote>\n
15.    The appellants have contested the suit. They raised an issue of
\nlimitation and also brought to the notice of the learned ADJ the factum
\nof moving an application under Order I Rule 10 CPC by respondent
\nNo.1 for being impleaded as party as also the order of dismissal of the
\nsaid application dated 10.08.1993.\n<\/p>\n
16.    A bare perusal of the application, reply and order as quoted above
\ngoes to show that all the documents which have been sought to be
\nrelied upon by the appellants in this case were very much before the
\nlearned ADJ to decide the application in Suit No.97\/1990. The right of
\nrespondent No.1 to base his claims on these documents was contested
\nby the appellants in their reply which was filed on 17.11.1992.\n<\/p>\n
17.    Thus, the right, if any, to assail the stand of the appellants for
\ndeciding the genuineness of the documents relied upon by respondent
\nNo.1 which are the basis of his claim in the present suit, commenced
\nfrom that date and the limitation in accordance with Article 58 expired
\non 16.11.1995. The suit in question has been filed much beyond the
\nperiod of limitation. It is also not a case where the respondent No.1
\nfiled objections to the execution of the decree by invoking Order XXI
\nRule 58 of the CPC or filed an appeal against the final judgment in Suit
\nNo.97\/1990 within limitation.      All these aspects have simply been
\noverlooked by the learned ADJ. He has blindly accepted the case set up
\nby respondent No.1 in allegedly having purchased the property from
\nSmt. Sudesh Sharma which fact has been denied by the appellants as
\nfar as back as in 1992. He has then said that respondent No.1 being
\nnot a party in the suit filed under Section 6 of the Specific Relief Act
\nwould not be bound by the decree passed in favour of the appellants
\nwithout referring to the order passed by the learned Civil Judge in
\nhaving dismissed the said application and the stand of the appellants
\nthat the documents on the basis of which respondent No.1 wanted to
\nput up his title as a defense to the suit filed by the appellant was
\nwithout any basis.\n<\/p>\n
18.    Now coming to the observations made by the ADJ regarding the
\nplea of limitation, I may simply observe that the order passed by the
\nFAO No.253-57 \/2005                                           Page 10 of 11<\/span>
\n ADJ is contrary to law and is not sustainable. It is not in accordance
\nwith the provisions contained under Article 58 of the Limitation Act,
\ndespite denial of the claim of respondent No.1 by the appellants in 1992
\nitself. The limitation to claim declaration as is sought to be done by the
\npresent suit expired on 09.08.1996, even if we take the date of
\ndismissal of the application under Order I Rule 10 CPC as the date to
\nstart the period of limitation wherein a final view regarding rejection of
\nthe claim of respondent No.1 that he had purchased a portion of the
\nproperty as pleaded.\n<\/p>\n
19.    In view of that, observations made in para 13 of the impugned
\norder that the Suit was not barred by limitation is not sustainable. In
\nthese circumstances, the order passed by the learned ADJ under Order
\n39 Rule 1 and 2 CPC in favour of the respondent cannot be sustained.
\nThe same is accordingly set aside.\n<\/p>\n
20.    Accordingly, the appeal is allowed.       A costs of `25,000\/- is
\nimposed upon respondent No.1 to be paid within one month from today.\n<\/p>\n
21.    A copy of this order be sent to the trial Court for information.
\nC.M.12669\/2005
\n       Disposed of as infructous.\n<\/p>\n
                                                   MOOL CHAND GARG,J
\nNOVEMBER 23, 2010
\n‘anb’<\/p>\n
FAO No.253-57 \/2005                                             Page 11 of 11<\/span>\n <\/p>\n","protected":false},"excerpt":{"rendered":"
Delhi High Court O P Bhalla & Anr vs Jagat Singh Arya & Ors on 23 November, 2010 Author: Mool Chand Garg * IN THE HIGH COURT OF DELHI AT NEW DELHI + FAO.No.253-57\/2005 % Reserved On: 11.11.2010 Decided On: 23.11.2010 O.P. BHALLA & ANR. …. Appellants Through: Mr.Atul Nigam, Adv. Versus JAGAT SINGH ARYA […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[14,8],"tags":[],"class_list":["post-23432","post","type-post","status-publish","format-standard","hentry","category-delhi-high-court","category-high-court"],"yoast_head":"\nO P Bhalla & Anr vs Jagat Singh Arya & Ors on 23 November, 2010 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/o-p-bhalla-anr-vs-jagat-singh-arya-ors-on-23-november-2010\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"O P Bhalla & Anr vs Jagat Singh Arya & Ors on 23 November, 2010 - 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