MANMOHAN SINGH,J. - (1.) MRS.Madhvi Mehra, appellant, has filed the present appeal against the order dated 23rd December, 2009 passed in I.A.No.7808/2006 in CS(OS)No.514/2006 whereby the application of the respondents No.2 and 3 under Order VII, Rule 11 CPC for rejection of the plaint was allowed and the suit of the plaintiffs Mrs.Kiran Sibal and Mrs.Madhvi Mehra (appellant) was dismissed being barred by principle of res judicata as well as barred by limitation.
(2.) MRS.Kiran Sibal is the mother of Mrs.Madhvi Mehra. Both filed the suit for rendition of accounts of respondent No.1 trust managed by respondents No.2, 3 and 4 and for a decree of declaration against the 28 occupants of flats/apartments as existing on piece of land under Khasra Nos.373, 374, 694/375 admeasuring 8 bighas and 12 biswas of land bearing plot Nos.3, 4, 5 & 6 in an area known as Kaushalaya Park, Hauz Khas, New Delhi, be declared as properties of respondent No.1. The said occupants of the same were impleaded as parties in the suit as defendants No.5 to 33 and also to declare that all acts, deeds and things done by the respondents No.2, 3 and 4 are in respect of suit properties of respondent No.1. Admittedly, Mrs.Kiran Sibal, who was plaintiff No.1 in CS(OS) No.514/2006 has not challenged the impugned order passed by the learned Single Judge.
(3.) UPON service, respondents No.2 and 3 filed an application under Order VII, Rule 11 read with Section 151 CPC, 1908 for rejection of the plaint, inter alia, on the following grounds: a. The plaintiffs have no locus standi to institute the suit against the erstwhile trust as it is already held by a court of appropriate jurisdiction that they are not the beneficiaries of the trust and the said finding operates as res judicata. b. It was in the knowledge of the plaintiffs that the respondent No.1 Trust stood dissolved as of 16 th January, 1985 with further endorsement thereof made on 23rd November, 2005 and in any event, the corpus thereof, as delineated by the plaintiffs themselves, stood extinguished as of the year 1983-84, when all the flats that fell to the share of the Trust under the Builder's Agreement in respect of the lands that were entrusted by the Settler were disposed of under various Agreements-to-Sell and possession handed over to the prospective buyers. c. At the time of disposal of the corpus of the trust all the beneficiaries thereof expressed a unanimous desire to be paid lump-sum towards their entitlement as deemed fit and proper by the trustees, who were authorized by the Settler to dissolve the trust and the trustees, acting in good faith for the benefit and in the interest of all concerned, acted under the Memorandum of Partial Dissolution dated 16th January, 1985 followed by the 23 rd subsequent Deed of Dissolution dated November, 2005. The relevant clauses were referred in the application which are reproduced hereunder: "AND WHEREAS it has been impressed upon the Trustees by Mrs. Ashok Kapoor as well as by Mr. Ashok Kapoor that in the best interest of their children i.e. � Amit Kapur and Rishi Kapur they as their guardians would demand that they be paid a lump sum amount in lieu of their beneficial right in the income and corpus of the Trust. Similar wishes have been expressed by Mrs. Anuradha Kapoor w/o Shri Vivek Kapoor the guardian of their three children i.e. Sharawan Kapur, Shrutianjali Kapur and Smitianjali Kapur. Similarly, Mrs. Meenakshi Sarabjit Singh as guardian of her two children i.e. Karunanjali Singh, Manan Sarabjit Singh have also expressed similar views. The trustees have decided to act according to their wishes. 6. Keeping these considerations in mind and in accordance with the authority vested in the Trustees and especially vide clause 14 of the Trust Deed and in view of the legal understanding that "Partial Dissolution" is part of "dissolution" � the Trustees, hereby partially apportion a part of the assets and liabilities as per following particulars for the time being subject to the conditions contained in clauses 7 and 8 hereunder: Serial No. Name of beneficiary Amount 1. Amit Kapur 4,00,000 2. Rishi Kapur 4,00,000 3. Shrawan Kapur 4,00,000 4. Shrutianjali Kapur 2,00,000 5. Smritianjali Kapur 2,00,000 6. Karunaanjali Singh 1,00,000 7. Manan Sarabjit Singh 1,00,000 8. That the beneficiaries through their guardians further agree to relinquish their share in the Trust by a separate deed which forms a part of the present deed. The relinquishment is subject to the condition that in case of refund, only that portion will be refundable which is in proportion to the total refund to be made by the Trust." d. That the factum of litigation filing of suit as well as the determination of right was not disclosed by the plaintiffs in the suit filed by them before this Court. e. That the plaintiffs had sought a relief of declaration with regard to the suit properties belonging to the defendant No.1 trust which is barred by limitation as the same is hit by Article 58 of the Schedule to the Limitation Act, 1963. f. The relief claimed by the plaintiffs could not be passed under Section 34 of the Specific Relief Act, 1963 inasmuch as it was imperative for the plaintiffs to seek additional relief of recovery of possession which was available to them because it was in their knowledge that the properties in question were not in possession of defendant No.1 but the other flat buyers who had been pleaded as parties in the action. ;