2015 (8) TMI 1542 - HC - Indian Laws

Suit for declaration to be the owner of property - Possession of property - restraint from parting with possession of the suit land. HELD THAT - A perusal of the original plaint would evince that there is no admission made by the appellant that it is not in possession of the suit land. The plaint has been very inartistically drafted and unfortunately the lawyer has not even used the word that originally Amir Chand and Brij Lal and thereafter Matwal Chand held the properties on behalf of the plaintiff as trustees, pending formal constitution of the plaintiff as a body incorporate. The entire pleadings in the plaint, meaningfully read, pleads so. But yet the counsel did not formally incorporate said aspect in the pleadings. It is trite that it is the substance of the pleadings which matters and not the form. Meaningfully read, the suit is based upon the plea that the suit property was purchased by Amir Chand and Brij Lal for the benefit of the members of Jhang Biradari Association and the beneficiaries would be such persons who become members of the plaintiff and were migrants to India from Jhang upon partition. It is apparent that while giving ink to the thought of the author i.e. drafting the prayer in the application seeking interim relief, giving reflection to the thought of the plaintiff, the counsel has in a mechanical way prayed that the defendants be restrained from parting with possession of the suit land. A right to sue accruing has not to be confused with the cause of action. The wrong alleged, when committed, infringing upon a right would give rise to a right to sue. Simultaneously would accrue the cause of action to sue. The facts pleaded for purposes of cause of action have a nexus to the prayer and the pleadings to bring out the cause of action would not be the pleadings to determine when did the cause of action accrue or when did the right to sue commence. Limitation would commence from the date when the right to sue accrued - It is settled law that a cue can be had from the Indian Trust Act, 1882 for understanding the various terms as well as the salient features attached to a Trust. Once a Trust always a Trust, is the trite proposition of law, like one another proposition, 'once a mortgage always a mortgage'. The Trust property cannot be allowed to be dissipated in any manner - It is a common principle that whenever a Trustee dies his legal representatives, not necessarily only the legal heirs of the deceased trustee, could rightly manage the property till a proper trustee is appointed. Even a trustee de son tort could safeguard the trust property. There are two elements involved in the concept possession, namely, 'corpus possessionis' and 'animus possidendi'. The owner need not necessarily be in physical possession at all times. Besides, in the case of a Trust the physical possession by the trustee would actually be a case of custody of the property being with the trustee and legal possession being with the trust - There was no need to seek any cancellation of the sale-deed dated May 16, 1962 because in the plaint the said sale-deed has not been challenged. Meaningfully read, the pleading is that Amir Chand and Brij Lal executed the sale-deed in question in favour of Matwal Chand because Matwal Chand was the Secretary of the Association and he held the property as a trustee. Impugned order is set aside - application filed by the appellant to amend the plaint is allowed.

Summary

Issues Involved:
1. Ownership of the property.
2. Maintainability of the suit for declaration without seeking cancellation of the sale-deed.
3. Bar of limitation.
4. Rejection of the plaint under Order VII Rule 11 CPC.
5. Amendment of the plaint.

Issue-wise Detailed Analysis:

1. Ownership of the Property:
The appellant, a registered society, claimed ownership of 31 bigha of land in Basai Darapur, New Delhi. The land was initially auctioned as evacuee property, and Amir Chand and Brij Lal bid on behalf of the society. They paid the bid amount through adjustments of claims from other associates. A sale-deed was later executed in favor of Matwal Chand, who acted as the Secretary of the society. The appellant argued that Matwal Chand held the property as a trustee for the society.

2. Maintainability of the Suit for Declaration Without Seeking Cancellation of the Sale-deed:
The respondents contended that the suit was not maintainable as it sought only a declaration of ownership without seeking cancellation of the sale-deed dated May 16, 1962, executed by Amir Chand and Brij Lal in favor of Matwal Chand. The court found that the suit was based on the premise that Matwal Chand held the property in trust for the society, and thus, there was no need to seek cancellation of the sale-deed.

3. Bar of Limitation:
The respondents argued that the suit was barred by limitation, highlighting the pleadings in paragraph 21 of the plaint, which mentioned various dates when the cause of action accrued. The court noted that the plaint was poorly drafted, mixing up the cause of action with the accrual of the cause of action. The court clarified that the right to sue accrues when the defendant commits an act causing injury to the plaintiff. Since the property was held in trust, Section 10 of the Limitation Act, 1963, which exempts suits against trustees from being barred by any length of time, applied.

4. Rejection of the Plaint Under Order VII Rule 11 CPC:
The respondents filed an application under Order VII Rule 11 CPC for rejection of the plaint on the grounds that the suit was barred by limitation and that it sought a mere declaration without seeking cancellation of the sale-deed. The court found that the learned Single Judge erred in rejecting the plaint based on these grounds. The court emphasized that the substance of the pleadings indicated that the property was held in trust for the society, and thus, the suit was not barred by limitation.

5. Amendment of the Plaint:
The appellant sought to amend the plaint to clarify that the society was in legal possession of the property since 1958 and to expand upon existing pleadings. The learned Single Judge dismissed the application for amendment, citing an admission in the original pleadings that the plaintiff was not in possession of the land. The court found this reasoning incorrect, noting that even admissions in pleadings can be withdrawn if legally sound reasons are provided. The court allowed the amendment of the plaint, emphasizing that the proposed amendments were clarificatory and necessary for a fair adjudication of the case.

Conclusion:
The court allowed the appeal, set aside the impugned order dated February 04, 2015, and restored the suit for adjudication on merits. The amended plaint was taken on record, and the respondents were directed to file a written statement to the amended plaint within six weeks. The suit was listed for directions before the Roster Judge on September 14, 2015. No costs were awarded.