VALMIKI J.MEHTA,J - (1.) THIS second appeal is filed against the concurrent judgments of the courts below; of the trial court dated 23.3.2012 and of the first appellate court dated 25.7.2013; by which the suit of the appellant/plaintiff stands rejected under Order 7 Rule 11 CPC. The subject suit is a suit seeking declaration, manadatory and permanent injunction with respect to the property No. A -18, Lajpat Nagar, New Delhi. Appellant/plaintiff claimed rights in this property by virtue of an agreement to sell dated 9.2.1971 executed in her favour by Sh. Durga Dass with late Sh. Girdhari Lal Wadhwa. Sh. Girdhari Lal Wadhwa died on 23.3.1981 leaving behind the appellant/plaintiff as his legal heir. Appellant/plaintiff thus claimed rights in the suit property on the basis of agreement to sell and the Will, both dated 9.2.1971, executed in favour of late Sh. Girdhari Lal Wadhwa by the original owner Sh. Durga Dass.
(2.) TRIAL court rejected the suit plaint by holding that appellant/plaintiff had only filed a suit for declaration valuing the suit at Rs. 200/ - for the relief of declaration and Rs. 130/ - for the relief of permanent injunction and since vacant peaceful possession was claimed, the suit without paying court fees was not maintainable. Trial court also relied upon Section 41(h) of the Specific Relief Act, 1963 to hold that the suit was not maintainable when equally efficacious remedy was available. Though, what is the equally efficacious remedy is not stated, however, actually it would mean filing of a suit for specific performance by the appellant/defendant and/or a suit for possession. Trial court has also rejected the plaint on account of an order passed by this Court on 19.5.1993 in CWP No.1274/1982 titled as Sohan Singh Vs. Union of India whereby the suit property was transferred in favour of Sh. Pritam Lal defendant no. 7, respondent no.2 herein way back in September 1994 by a conveyance deed being executed in favour of defendant no. 7/respondent no. 2. The first appellate court has taken an additional line of reasoning in rejecting the plaint by holding that appellant/plaintiff as also her predecessor failed to pay the balance consideration under the agreement to sell dated 9.2.1971, and therefore, no rights can be claimed by the appellant/plaintiff in the suit property. This has been observed in the following words by the appellate court: "21. Appellants have claimed the title to the suit property through will dated 09.02.1971 of Sh. Durga Dass executed in favour of Sh. Girdhari Lal. Appellants have filed the copy of the same before Ld. Trial Court for deciding an application under Order 7 Rule 11 CPC the documents filed by the plaintiff/appellant herein are deemed to be correct and valid. In the said will Sh. Durga Dass has bequeathed suit property to Sh. Girdhari Lal. According to the terms of the will, Durga Dass has stated that he has sold the suit property to Girdhari Lal and as it is late to take sale permission of the suit property, Durga Dass executed agreement to sell in favour of purchaser or in anyone to whom purchaser wanted to transfer. It was further stated that Girdhari Lal shall become the owner of the suit property and will obtain the rights of the executants. It is further stated that in case Girdhari Lal pre -deceases Durga Dass then his legal heirs shall become the owner of the suit property. It is further stated that Durga Dass and his legal heirs will have no concern with the suit property but Girdhari Lal shall pay the remaining amount of the suit property to legal heirs of Durga Dass and the will should be affected after making the remaining payment to legal heirs of Durga Dass. A perusal of these terms clearly reveals that the will was to become operative only if Girdhari Lal would have paid the remaining amount to legal heirs of Durga Dass. It is an admitted fact that Girdhari Lal died on 23.03.1981. No payment of the remaining amount was made by Girdhari Lal during his life time to Durga Dass. It was only after his death that the appellants approached respondent no.1 the legal heir of Durga Dass for paying the balance amount and as late as on 15.02.1997 the efforts were made to make this payment. Even otherwise since Girdhari Lal did not comply with the condition of paying the remaining amount to legal heirs of Durga Dass, the dated 09.02.1971 never became effective/ operative. It was only in case of Girdhari Lal pre - deceasing Durga Dass that the appellant would have succeeded to suit property under the terms of the Will. It is pertinent to note that the payment of remaining amount was not postponed or deferred as a liability which the legal heirs of Girdhari Lal had to discharge. The liability was of Girdhari Lal alone and there is not averment that Grdhari Lal made the payment during lifetime or after death of Durga Dass. Since the will did not become effective, the suit property was not bequeathed in favour of Girdhari Lal not in favour of legal heirs as admittedly Gridhari Lal did not pre -decease Durga Dass. Thus the plaint does not disclose any cause of action against the respondents."
(3.) IN my opinion, no substantial question of law arises for entertaining this appeal under Section 100 CPC, inasmuch as the suit as framed for declaration and injunction was not maintainable because rights were claimed in the suit property only on the basis of an agreement to sell and Will, though neither the appellant/plaintiff nor her predecessor -in -interest late Sh. Girdhari Lal Wadhwa came into possession of the suit property. In such circumstances, appellant/plaintiff had to file a suit for specific performance for the agreement to sell dated 9.2.1971 and in any case at least a suit for possession with respect to suit property. Not only the suit was not filed for specific performance or possession but also the suit was not properly valued for the purposes of court fees and jurisdiction. It is further to be noted that once a conveyance deed was executed in favour of defendant no. 7/respondent no. 2 unless and until the title in favour of defendant no. 7/respondent no. 2 was cancelled and a conveyance deed executed in favour of the appellant/plaintiff, the suit as framed would not be the correct suit for claiming the real relief which the appellant/plaintiff claims to be entitled to. In my opinion, the suit for specific performance of the agreement to sell dated 9.2.1971 would be barred by limitation as the subject suit was filed in the year 1997 i.e more than 26 years after entering into of the alleged agreement to sell. Even the claim on the basis of the Will dated 9.2.1971 would be barred by limitation inasmuch as the predecessor -in -interest of the appellant/plaintiff late Sh. Girdhari Lal Wadhwa died way back on 23.3.1981 and the suit was filed in the year 1997. Thus, looking at it from any angle; as to the form of the suit's appropriate cause of action not being pleaded and appropriate relief not being prayed; suit not being valued properly for the purposes of court fees and jurisdiction and appropriate court fees not being paid; and finally of the suit quite clearly barred by limitation, the courts below have correctly rejected the suit under Order 7 Rule 11 CPC. I would like to add that such a suit is liable to be dismissed by additionally exercising powers under Order 12 Rule 6 CPC on the admitted facts.;