TaxTMI 
TaxTMI 
TaxTMI 
2017 (9) TMI 2009
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....suit property bearing City Survey No. 2213/01, Municipal Corporation House No. 410 situated in Ward No. 65, Mohan Nagar, Nagpur, more particularly described in plaint paragraph No. 1, filed a suit against the respondents seeking declarations that the Will dated 4.3.1946 forbade the beneficiary under the Will or anybody claiming through him to let out, sell or otherwise alienate the suit property; that registered sale deed dated 11.4.2012 executed in respect of suit property by respondent No. 1 in favour of respondent No. 2 was null and void and thus was liable to be cancelled and relief for possession of suit property and injuncting of the respondents from carrying out any construction over the suit property or alienating or creating third-party interest in it. 4. According to the appellant, one Mohanlal Chironjilal Jaiswal was the owner of the suit property and after his death, it was inherited by Jainarayan Jaiswal. During his life time, Jainarayan bequeathed suit property by registered Will dated 4.3.1946 to his son Chandanlal Jaiswal. But such bequeathal of the suit property was subject to the condition that Chandanlal shall strictly use the suit property for his own residenti....
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....junction. Accordingly, suit being Special Civil Suit No. 39 of 2015, the present suit, was filed by the appellant against both the respondents. 7. Respondents strongly resisted the suit. They also filed an application under Order VII, Rule 11 read with Section 9A and Section 151 of the Code of Civil Procedure for rejection of plaint and deciding the jurisdiction as a preliminary issue. The main thrust of the application was on the point that the suit as filed by the appellant was barred by limitation. After hearing both sides, the trial Court framed a preliminary issue on the question of jurisdiction under Section 9A of CPC. This issue was decided on merits by the trial Court by this judgment rendered on 15th April 2017. It is this judgment which is the cause for filing of present appeal by the appellant, the original plaintiff. 8. I have heard Shri R.M. Sharma, learned counsel for the appellant and Shri Shyam Dewani, learned counsel for the respondents. I have gone through the paper book of this appeal. Now, the following point arises for my determination: "Whether the suit filed by the appellant is barred by limitation ?" 9. Learned counsel for the appellant submits that ser....
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....ng a declaration that the suit property cannot be let out, sold, mortgaged or bequeathed or alienated in any manner together with other declaratory reliefs was filed in January 2015 and, it was clearly beyond the period of limitation prescribed under Article 58 of the Limitation Act. He also submits that declaration regarding the sale deed dated 11.4.2012 being bad and not binding upon the appellant, could not be sought unless the will dated 10.9.1999 executed in respect of the suit property by deceased Laxmibai in favour of respondent No. 1 is also challenged for its validity and as it has not been done by the appellant, it has to be said that the suit does not disclose cause of action which is nothing but every fact and bundle of facts which, if controverted, would have to be proved by the plaintiff in order to get the relief sought in the suit. He places his reliance upon the cases of Hardesh Ores (P) Ltd. v. Hede And Company reported in (2007) 5 SCC 614; Church of Christ Charitable Trust And Educational Charitable Society v. Ponniamman Education Trust reported in (2012) 8 SCC 706 and I.S. Sikandar v. K. Subramani & ors reported in (2013) 15 SCC 27. 12. In the case of Archana B....
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.... favour of defendant No. 2 stands cancelled in respect of suit property. (5) Restrain defendants from carrying out any construction on suit property or suit plot and from alienating or creating any third party interest or transfer any portion of the suit property in favour of any third person till disposal of this suit. (6) Pass a decree of possession in respect of suit property in favour of plaintiff and direct the defendants to handover physical possession of the suit property to plaintiff in view of WILL dated 4.3.1946. (7) Saddle the cost on the defendants, and (8) be further please to pass any such other order as may be deemed fit and proper in the facts and circumstances of the case for which act of kindness the plaintiff shall remain duty bound and ever pray." 15. A minute perusal of these reliefs would make it clear to us that the first relief seeking a declaration that as per the Will dated 4.3.1946, the suit property cannot be let out or sold or alienated in any manner is the main relief based on which are the remaining reliefs incorporated in prayer clauses (2) to (6). It would then follow that the other reliefs in prayer clauses (2) to (6) are only consequentia....
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....aneshlal Harnarayan Jaiswal, who is claimed to be the grand-father by the appellant. So, what had become clear to the appellant was the fact that an attempt was being made by respondent No. 1 to sell the suit property, knowledge about which was acquired by him on 18.7.2011 and, respondent No. 1 could not do so in view of the condition imposed in the Will dated 4.3.1946, knowledge about which was obtained by him on 26.7.2011. In other words, by 26.7.2011 it had become clear to the appellant that the suit property could not be sold or alienated in any manner by respondent No. 1 and yet respondent No. 1 was making efforts to sell the same. Thus, the first right to sue in the present case, which was a clear right to sue, accrued to the appellant on 26.7.2011. 18. In paragraph 24 of the plaint, the appellant also admits the fact that the cause of action for the suit arose on 26.7.2011 when he pleads thus : "(24) The cause of action for this suit arose at Nagpur on 26.7.2011 when plaintiff got copy of WILL dated 4.3.1946 from the Office of Nagpur Municipal Corporation, Nagpur......... " 19. In the oral evidence adduced by the appellant also, the appellant admits that in the year 2011....
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.... complete cause of action in order to maintain the suit seeking such declarations as the sale deed dated 11.4.2012 is null and void and liable to be cancelled and for possession and such relief as restraining the respondents from carrying out construction. Even in the case of I.S. Sikandar (supra), the Hon'ble Supreme Court has held that unless a foundational relief is sought, a suit seeking consequential relief is not maintainable in law. 22. As if what is seen above is not enough, there is one more dimension involved in this case, which if considered, would make one find that at the base of everything sought, lies the desire of the appellant to achieve an impossibility. The appellant by prayer clause (2) seeks a declaration that possession of suit property be taken and occupied by "Late Lala Ganeshlal Harnarayan Jaiswal", a dead person. Now, if this clause is also considered as seeking equally a foundational relief vis-à-vis reliefs in prayer clauses (3) to (6), and this relief is still-born, all rest of the reliefs in clauses (3) to (6) must also meet the dead end. 23. On the aforestated additional grounds as well, I find that the suit in respect of prayer clauses (....