Gujarat High Court
Heirs Of Decd. Maniben D/O Naranbhai ... vs Heirs Of Decd. Dwarkabhai Naranbhai ... on 2 September, 2016
Author: Z.K.Saiyed
Bench: Z.K.Saiyed
C/SA/109/2016 CAV JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SECOND APPEAL NO. 109 of 2016
With
CIVIL APPLICATION NO. 4522 of 2016
In
SECOND APPEAL NO. 109 of 2016
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE Z.K.SAIYED
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1 Whether Reporters of Local Papers may be allowed
to see the judgment ?
2 To be referred to the Reporter or not ?
3 Whether their Lordships wish to see the fair copy of
the judgment ?
4 Whether this case involves a substantial question of
law as to the interpretation of the Constitution of
India or any order made thereunder ?
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HEIRS OF DECD. MANIBEN D/O NARANBHAI ISHVARBHAI AND WD/O
KANTILAL NATHALAL PATEL....Appellant(s)
Versus
HEIRS OF DECD. DWARKABHAI NARANBHAI ISHVARBHAI &
3....Respondent(s)
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Appearance:
MR SN SOPARKAR, SENIOR COUNSEL with MR PRATIK Y JASANI,
ADVOCATE for the Appellant(s) No. 1 - 1.3.4 , 1.4 - 1.5
MR ANSIN DESAI with MR. ZALAK B PIPALIA, ADVOCATE for the
Respondent(s) No. 3
MR MIHIR THAKOR, SENIOR COUNSEL with MS MINI M NAIR, ADVOCATE
for the Respondent(s) No. 4
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HC-NIC Page 1 of 31 Created On Mon Sep 05 00:48:05 IST 2016
C/SA/109/2016 CAV JUDGMENT
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CORAM: HONOURABLE MR.JUSTICE Z.K.SAIYED
Date : 02/09/2016
CAV JUDGMENT
1. The appellants have filed present appeal under Section 100 of the Civil Procedure Code with Civil Application praying to stay the implementation, operation and execution of the order dated 2.9.2014 passed by the learned 5th Additional Senior Civil Judge, Ahmedabad (Rural) below Ex.15 in Regular Civil Suit No.200 of 2014 as well as the order dated 30.4.2016 passed by the learned 8th Additional District Judge, Ahmedabad (Rural), Mirzapur in Regular Civil Appeal No.34 of 2014, pending the admission, hearing and final disposal of the appeal.
2. As the present proceedings arise out of an application under Order 7 Rule 11(d) of the Civil Procedure Code, 1908, and the question remains to be answered by this Court and thus with the consent of both the parties the matter is taken up for final hearing. Hence rule.
3. The appellants herein are the original appellants - plaintiffs and the respondents Page 2 of 31 HC-NIC Page 2 of 31 Created On Mon Sep 05 00:48:05 IST 2016 C/SA/109/2016 CAV JUDGMENT herein are the original respondents - defendants in the appeal, wherein the appellants have challenged the order dated 2.9.2014 passed by the learned 5th Additional Senior Civil Judge, Ahmedabad (Rural) below Ex.15 in Regular Civil Suit No.34 of 2014. The learned Trial Court vide order dated 2.9.2014 has been pleased to allow Ex.15 filed by the respondents No.1.2, 1.2.1, 1.2.2, 1.2.3 and 1.6.1 to 1.6.4 invoking provisions of Order 7 Rule 11 of the Civil Procedure Code, 1908. The learned Appellate Court vide order dated 30.4.2016 has been pleased to confirm the order passed by the learned Trial Court.
4. Heard Mr.S.N.Soparkar, learned Senior Counsel appearing with Mr.Pratik Jasani, learned counsel for the appellants. He has submitted that Smt.Maniben Naranbhai Patel happens to be the mother of the appellants and legal heir of deceased Naranbhai Ishvarbhai Patel, who died on 10.3.1963. Upon demise of Naranbhai, names of his heirs came to be mutated in the revenue record. The mother of the appellant being the legal heir of Naranbhai, her name was also mutated in the revenue records. The mother of the appellants was having onethird share in the Page 3 of 31 HC-NIC Page 3 of 31 Created On Mon Sep 05 00:48:05 IST 2016 C/SA/109/2016 CAV JUDGMENT estate of deceased Naranbhai Ishvarbhai Patel.
5. He has submitted that during the lifetime of the mother of the appellants and after the demise of Naranbhai Ishvarbhai Patel, the brothers of the mother of the appellants, namely, Shri Dwarkabhai and Shri Vitthalbhai used to mange the affairs of the family as well as the estate of deceased Naranbhai Ishvarbhai Patel, which includes various parcels of land. That, the uncles of the appellants used to regularly part with one third share belonging to the mother of the appellants by distributing the income of the agricultural produce pertaining to the land belonging to deceased Naranbhai Ishvarbhai Patel. It is submitted that the uncles of the appellants often used to come and take signature of the mother of the appellants for various transactions.
6. He has submitted that the mother of the appellants passed away on 18.09.2005. That, in past, the appellants were sharing a strong bonding with their uncles who used to visit the appellants on frequent basis, however, on account of death of the mother, the uncles of the appellants stopped coming to the Page 4 of 31 HC-NIC Page 4 of 31 Created On Mon Sep 05 00:48:05 IST 2016 C/SA/109/2016 CAV JUDGMENT residence of the appellants and gradually, discontinued the relations. That, not only the uncles of the appellants discontinued the relations, but they also stopped giving / parting the monetary share which they used to give to the mother of the appellants while she was alive. That, though the appellants tried to inquire about their share, the uncles of the appellants refused to entertain any of the request made by the appellants.
7. He has submitted that the appellants were aware about one parcel of land being block no.490 situated at Ahmedabad. That, the appellants made an application before the revenue authorities for getting their names mutated in the revenue record in the place of their mother. That, accordingly, the said entry was mutated on 27.05.2010 vide entry no.4287. The appellant, thereafter, requested their uncles to give necessary details with respect to the parcels of land in which their mother was having onethird share, however, the uncles of the appellants did not cooperate and rather refused to part with a penny.
8. He has submitted that the appellants, thereafter, took recourse of the Right to Page 5 of 31 HC-NIC Page 5 of 31 Created On Mon Sep 05 00:48:05 IST 2016 C/SA/109/2016 CAV JUDGMENT Information Act, 2005 and procured informations with respect to the estate of late Shri Naranbhai Ishvarbhai Patel. That, upon going through the relevant documents, the appellants came to know that the name of the mother of the appellants was mutated in revenue records vide entry no.1165 being legal heir of Naranbhai Ishvarbhai Patel. That it also came to the knowledge of the appellants that within two days from the date of death of Shri Naranbhai Ishvarbhai Patel, an another entry being entry no.1166 has been mutated in the revenue records recording that the mother of the appellants has waived / relinquished her rights from the estate of deceased Naranbhai Ishvarbhai Patel.
9. He has submitted that upon perusal of the statement of the mother of the appellants alleged to have been given before the concerned revenue officers bears a different signature than the signature which the mother of the appellants ordinarily used to make. That, upon comparing with the signatures, the appellants came to know that the signatures made on the alleged statement given by the mother of the appellants is fabricated one and in fact, she has never relinquished her right in favour of her brothers.
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10. He has submitted that no sooner they came to know about the above referred fraud committed by the uncles of the appellants, they filed an appeal being RTS Appeal No.457 of 2012 before the learned Deputy Collector challenging entry no.1166. The said appeal came to be rejected vide order dated 21.12.2013 and being aggrieved by the said order, the appellants have preferred Revision Application before the learned Collector.
11. He has submitted that while the revenue proceedings were on the verge of finalization, the appellants came across an advertisement issued on behalf of the uncles of the appellants demanding title clearance of various parcels of land in which the appellants were having their onethird share through their mother. It is submitted that the appellants, thus, came to know that the respondents herein in active connivance with each other, for avoiding partition and for duping the rights of the appellants and to avoid giving any share from the estate of deceased Naranbhai Ishvarbhai Patel, has decided to dispose of the parcels of the land. The appellants, thus, approached their uncles with a request to provide onethird Page 7 of 31 HC-NIC Page 7 of 31 Created On Mon Sep 05 00:48:05 IST 2016 C/SA/109/2016 CAV JUDGMENT share from the estate of deceased Naranbhai Ishvarbhai Patel, however, no heed was paid to such genuine request made by the appellants.
12. He has submitted that the appellants were constrained to file a suit before the learned Additional Senior Civil Judge, Ahmedabad being Regular Civil Suit No.200 of 2014 with a prayer of partitioning the estate of deceased Naranbhai Ishvarbhai Patel and to hand over onethird share to the appellants being the legal heir of deceased Maniben Naranbhai Patel. That, the appellants also made a prayer to declare that there has been no release of rights in favour of the respondents herein by the appellants, as recognized under the Hindu Succession Act, after the demise of Shri Naranbhai Ishvarbhai Patel. The appellants also sought a mandatory injunction against the respondents for not transferring, disposing, alienating the estate of deceased Naranbhai Ishvarbhai Patel, as narrated in the Scheduled appended to the suit.
13. He has submitted that upon filing of the abovereferred suit, the learned trial Court was pleased to issue notice to all the Page 8 of 31 HC-NIC Page 8 of 31 Created On Mon Sep 05 00:48:05 IST 2016 C/SA/109/2016 CAV JUDGMENT respondents. That , upon being served, filed their appearance. That, the respondents no.1.2, 1.2.1, 1.2.2, 1.2.3 and 1.6.1 to 1.6.4 filed an application being Exh.15 invoking provisions of Order VII Rule 11 of the Code of Civil Procedure, 1908, inter alia, contending that the suit filed by the appellants is hopelessly time barred, the suit does not disclose a specific cause of action, the suit is filed by a Power of Attorney who is not joined as party, etc.
14. He has submitted that, the appellants, thereafter, filed a detailed reply to Ex.15 filed by the respondents. That, the appellants, in their reply, negated all the assertions made by the said respondents and further contended that even if the averments made in Ex.15 be accepted to be true, then also, the same would not persuade the learned trial Court to dismiss the suit, inasmuch as, all the contentions raised by the said respondents can be proved only by leading evidence as the issue which has been agitated is a mixed question of law and facts. The appellants also raised various legal contentions to justify that the application filed by the respondents is only with a view to buy time so that they can change hands Page 9 of 31 HC-NIC Page 9 of 31 Created On Mon Sep 05 00:48:05 IST 2016 C/SA/109/2016 CAV JUDGMENT with the land in question.
15. He has submitted that the learned trial Court, after hearing the parties, vide order dated 02.09.2014, was pleased to accept and allow application Ex.15 filed by the respondents and thereby, dismissing the suit filed by the appellants. That, the brief grounds on which the learned trial Court has allowed Ex.15 filed by the respondents are set out as under:
(i) Naranbhai Ishvarbhai Patel died in the year 1963, the mother of the appellants died in the year 2005 and during the lifetime of the mother of the appellants, the entry in question being entry no.1166 has remained unchallenged and the same has been challenged after a span of 51 years by the appellants herein and, therefore, the suit is barred by limitation.
(ii) The challenge to entry no.1166 by the appellants has failed and the competent authority has dismissed the appeal without even condoning the delay.
(iii) The appellants are unable to explain as to how the limitation is a mixed question of law and fact.
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(iv) Document which does not create any interest in an immovable property does not require registration and even otherwise, it is a family arrangement which needs no registration for enforcement.
(v) The mother of the appellants has died in the year 2005 and 9 years thereafter, the present suit is preferred which is also beyond limitation.
16. He has submitted that after the learned trial Court was pleased to pronounce the order dated 02.09.2014, the appellants have preferred an application seeking suspension of the implementation of the order dated 02.09.2014 for a period of 30 days as the appellants are desirous to challenge the said order before the appellate forum. That, the said application of the appellants came to be allowed by the learned trial Court and the order dated 02.09.2014 was stayed for a period of 30 days.
17. He has submitted that the appellants being aggrieved by the order dated 02.09.2014 passed by the learned trial Court, preferred an appeal before the learned Appellate Court which came to be registered as Regular Civil Page 11 of 31 HC-NIC Page 11 of 31 Created On Mon Sep 05 00:48:05 IST 2016 C/SA/109/2016 CAV JUDGMENT Appeal No.34 of 2014. That, the said appeal filed by the appellants was rejected on 30.04.2016, wherein the learned Appellate Court approved the findings given by the learned trial Court. That, the brief grounds on which the learned Appellate Court was pleased to dismiss the appeal filed by the appellants are briefly set out as under:
(i) The entry no.1166 has been challenged belatedly by the appellants after the demise of their mother.
(ii) That, the entry in question is more than 30 years old as the same being produced from the Government record. As per section 90 of the Evidence Act, the signatures on the said documents is presumed to be genuine.
(iii) Registration of a document, relinquishing right from a particular property, being a statement is not mandatory.
(iv) That entry is challenged after a span of 51 years and, therefore, the reasonings are given by the learned trial Court.
18. He has submitted that after the learned Appellate Court was pleased to pronounce the Page 12 of 31 HC-NIC Page 12 of 31 Created On Mon Sep 05 00:48:05 IST 2016 C/SA/109/2016 CAV JUDGMENT order dated 30.04.2016, the appellants have preferred an application seeking suspension of the implementation of the order dated 30.04.2016 for a period of 30 days as the appellants are desirous to challenge the said order before this Court. That, the said application of the appellants came to be allowed by the learned Appellate Court and the order dated 30.04.2016 was stayed for a period of 30 days.
19. He has submitted that respondents no.3 and 4 have been subsequently added to the appeal proceedings, inasmuch as, they have purchased the property pending the suit proceedings. That the said respondents have challenged the order passed by the learned Appellate Court for joining them as a party respondents before this Court by way of filing Special Civil Application No.3793 of 2016, however, this Court has been pleased not to interfere with the order allowing the respondents to be joined as party defendants/respondents and vide order dated 09.03.2016, was pleased to direct the learned Appellate Court to dispose of the appeal proceedings within a span of six months.
20. He has submitted that the impugned Page 13 of 31 HC-NIC Page 13 of 31 Created On Mon Sep 05 00:48:05 IST 2016 C/SA/109/2016 CAV JUDGMENT orders are passed on erroneous assumptions, are of excess jurisdiction and violative of principles of natural justice, arbitrary, capricious and arrived at a finding which is perverse and based on no material. He has submitted that the learned Courts below have erred in concentrating on the first prayer made by the appellants and have ignored considering the remaining two prayers made by the appellants in the suit. He has submitted that without admitting that any of the prayers made by the appellant is barred by limitation, but assuming the same to be barred by limitation for the sake of arguments, even then, the prayers No.10(B) and 10(C) seeking partition in the estate of deceased Naranbai Ishvarbhai Patel as well as seeking mandatory injunction against the respondents would certainly fall within the period of limitation which has accrued in the year 2013 and the suit in question has been filed in the year 2014.
21. He has submitted that both the learned Courts below have erred in dismissing the suit filed by the appellants by ignoring Article 110 of the Limitation Act which speaks about the limitation in case a person is excluded from a joint family property to Page 14 of 31 HC-NIC Page 14 of 31 Created On Mon Sep 05 00:48:05 IST 2016 C/SA/109/2016 CAV JUDGMENT enforce a right to share. He has submitted that considering Article 110 the limitation starts to run when the exclusion becomes known to the plaintiffs. He has submitted that for the purpose of Article 110, there has to be appositive act or conduct by which the exclusion from joint property becomes known to the plaintiff. In the present case there is absolutely no evidence to suggest that the appellants have been excluded from the property of joint family for more than 12 years prior to institution of the suit. He has submitted that considering Article 110 read with the averments made by the appellants in the suit, the appellants came to be know about their exclusion only in the year 2013 when the appellants came across the notice of title clearance issued by the respondents herein clarifying the intention to exclude the appellants from their share of the property of deceased Naranbhai Ishvarbhai Patel. He has submitted that since the limitation has started from the year 2013, the instant suit filed by the appellants which is for partition has been filed in the year 2014, the same is well within limitation and, therefore, dismissal on the ground of limitation is illegal in nature.
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22. He has submitted that the appellants have never questioned Entry No.1166 which is a subject matter of further challenge before the learned Collector or before the learned Principal Secretary. He has submitted that the pleadings about relinquishment made by the mother of the appellants in the year 1963 was made for the purpose of demonstrating the conduct of the respondents and by no stretch of imagination the said averments can be read for the purpose of computing the period of limitation. He has submitted that the cause of action for the appellants to file the suit arose only in the year 2013 and not in the year 1963. He has submitted that any relinquishment of right cannot be on the basis of oral statement, but the same has to be reduced into writing and the said document also needs to be registered, otherwise the same would not be considered to be a valid document considering the provisions of the Registration Act. He has submitted that the learned Courts below have erred in taking recourse of Section 90 of the Indian Evidence Act as the same is having no relevant to the facts of the present case.
23. In view of above submissions he has relied on the decisions in the case of (1) N. Page 16 of 31 HC-NIC Page 16 of 31 Created On Mon Sep 05 00:48:05 IST 2016 C/SA/109/2016 CAV JUDGMENT Padmamma and Ors vs. S.Ramkrishna Reddy and Ors., (2015) 1 SCC 417 (2) Suraj Bhan vs. Financial Commissioner, 2007 (6) SCC 186 (3) Krishna Filial Rajasekharan Nair (D) by Lrs. vs. Padmanabha Pillai (D) by Lrs., 2004 (12) SCC 754 (4) Rajinder Singh vs. State of Jammu and Kashmir, 2008(9) SCC 368 (5) Santosh vs. Jagat Ram and Anr., (2010) 3 SCC 251 (6) Syed Shah Ghulam Ghouse Mohiuddin & Anr. vs. Syed Shah Ahmed Mohiuddin Kamisul Quadri (died) by 1 heirs & Anr., 1971 (1) SCC 597 and (7) Civil Revision Application No.229 of 2013, Farida Rajali Sabuwala vs. Shabbir Shoaibbhai Sabuwala. Lastly he has submitted that the impugned orders passed by the learned Courts below need to be stayed.
24. Heard Mr.Ansin Desai, learned counsel appearing with Mr.Zalak B. Pipalia, learned counsel for the respondent No.3. He has submitted that present second appeal deserves to be dismissed as there are no substantial questions of law involved. There are concurrent findings of two Courts below. Both the Courts after extensive hearing, have come to the conclusion that the suit being Regular Civil Suit No. 200 of 2014 deserves to be rejected and application Exh.15 filed by defendant Nos.1(b), 1(b)(1), 1(b)(2), 1(b)(3) Page 17 of 31 HC-NIC Page 17 of 31 Created On Mon Sep 05 00:48:05 IST 2016 C/SA/109/2016 CAV JUDGMENT and 1(u)(1), 1(u)(2), 1(u)(3) and 1(u)(4) deserves to be allowed.
25. He has submitted that it is the case of the applicant that Regular Civil Suit No. 200 of 2014 is required to be rejected in exercise of powers under Order 7 Rule 11(D) of the Code of Civil Procedure, 1908. For the purpose of examining the legality and the validity of the order passed below Exh.15, if both the orders under challenge in the present second appeal are looked into, it would be evident that the plaint was rightly rejected.
26. He has submitted that Regular Civil Suit No.200 of 2014 filed by the present appellant is rightly rejected in exercise of power under Order 7 Rule 11(D) of the Civil Procedure. He has submitted that the Suit is frivolous and vexatious suit and meritless suit. He has submitted that the suit is time barred. He has submitted that the suit is filed after a period of beyond 51 years of death of Naranbhai, maternal grandfather of the appellant. He has submitted that the mother of the appellant during her life time never raised a contention that she had share in the property or she wanted share in the Page 18 of 31 HC-NIC Page 18 of 31 Created On Mon Sep 05 00:48:05 IST 2016 C/SA/109/2016 CAV JUDGMENT property or she has not relinquished her share from any property. He has submitted that the mother of the appellant viz. Maniben also expired on 18.09.2005 and the present suit being Regular Civil Suit No.200 of 2014 is filed after 9 years. He has submitted that no cause of action is mentioned. In fact, vague and ambiguous averments are made in the plaint without any details of date, proof or documents or even no date is mentioned in cause of action and hence, vexatious cause of action is mentioned in the plaint. He has submitted that the present is a case of crafty, shrewd and illusory pleadings mentioned to come around bar of limitation. He has submitted that the basis shown in the plaint is as regard to revenue entry No.1166 mutated in the revenue record after statements were given by Maniben and Ichhaben, Maniben being mother of appellant through whom the appellants are trying to litigate for alleged claim. As stated earlier, Maniben died 9 years before filing of suit and her father Naranbhai whose property share is being claimed died 10.03.1963. Solely on this ground, the plaint is required to be rejected and is therefore, rightly rejected.
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27. He has submitted that the stand taken by the appellant that Maniben has not signed anywhere or her sign is forged or fabricated cannot be believed in view of the fact that her signature is before the revenue talati, that apart 01.03.1963, she has never claimed that she never signed and now after a period of 51 years, totally bogus claimed is being made by the appellant. He has submitted that the present suit is instituted only because one of the properties is being sold and so as to extort money and to create cloud over the proceedings initiated by way of regular civil suit. He has submitted that such suit being wasting of judicial time and process of Court.
28. He has submitted that both the Courts have concurrently held in favour of the respondent and therefore, no interference is called for under Section 100 of the Civil Procedure Code. What is sought to be challenged in the present proceedings is a statement of 1963 before the revenue talati. Such a claim never be proved in the eyes of law after a period of 51 years. He has submitted that the appellants have already failed before revenue authority as delay is not condoned in challenging the revenue Page 20 of 31 HC-NIC Page 20 of 31 Created On Mon Sep 05 00:48:05 IST 2016 C/SA/109/2016 CAV JUDGMENT entries. He has submitted that relinquishment of right or relinquished right does not required registration under Section 70 of the Registration Act. Such oral submission as in the present case is not required to be registered as there is no document of transfer and as a matter of fact also, the same is not transfer under the Provision of Transfer of Properties Act. Even otherwise, relinquishment arose between first blood related is to be looked into as routine practice, prevalent rural part of the country since decades.
29. He has submitted that law is laid down that relinquishment of right is not required to be registered under Section 70 of the Registration Act.
30. He has relied on the decision in the case of T.Arivandandam vs. T.V.Satyapal and Anr. (1977) 4 SCC 467, wherein it is held that if clever drafting is created, illusion of cause of action the court must nipped in the bird at the first hearing by examining the party searchingly under Order 10 of Civil Procedure Code and actives judge is the answer to irresponsible law suit. The trial Court was insisted imperatively of examining Page 21 of 31 HC-NIC Page 21 of 31 Created On Mon Sep 05 00:48:05 IST 2016 C/SA/109/2016 CAV JUDGMENT the party at the first hearing so that bogus litigation can be sought down at the earlier stage. The penal code is also resourcefully informed to meet such men and must be prigard against them, it is also held that party persistently resorting to frivolous and vexatious litigation to vague proper process of court, held contempt power of Court is mean for such persons.
31. He has relied on the decision in the case of I.T.C. Ltd., vs. Debts Recovery Appellate Tribunal & Ors., (1998) 2 SCC 70, wherein it is held that when plaint does not disclose a proper cause of action, Court as to ascertain where the plaint created a illusion of cause of action by clever drafting paragraph 13, 16 and 27.
32. He has relied on the decision in the case of Raj Narain Sarin (dead) through Lrs., and Ors. Vs. Laxmi Devi & Ors., (2002) 10 SCC 501, wherein it is held that rejection of plaint, exercise of power Order 7 Rule 11(D), is justified where the litigation was utterly vexatious and abuse of process of Court. 40 years late challenge to transfer certain land holding by sale deed executed by predecessor of plaintiff though contention raised that Page 22 of 31 HC-NIC Page 22 of 31 Created On Mon Sep 05 00:48:05 IST 2016 C/SA/109/2016 CAV JUDGMENT the sale deed concerned did not covered a particular portion of the land. The plaint was ultimately rejected.
33. He has relied on the decision in the case of Kanjibhai Bhagwanbhai Patel vs. Nanduben Shamjibhai Sorathiya through P.O.A. Dharmesh P. Trivedi and Ors., wherein it is held that if averments in plaint or undisputed fact suit is time barred, plaint can be rejected under Order 7 Rule 11(D) considering that plaintiff in that case on knowledge of cause of action delay 6 years before filing of suit, suit is time barred, further report by hand writing expert cannot given cause of action plaint order to be rejected.
34. He has submitted that Special Leave to Appeal (Civil) no.3703237041 of 2012 dated 14.08.2013 is dismissed, the said SLP was challenging the judgment as above reported in 2013 (1)GLR page 51.
35. He has relied on the decision in the case of Shashikant Natvarlal Patel and Anr. Vs. Arvindbhai Bhupatbhai Gohil & Ors., 2010(1) GLR 670, wherein it is held that document in the nature of familiar Page 23 of 31 HC-NIC Page 23 of 31 Created On Mon Sep 05 00:48:05 IST 2016 C/SA/109/2016 CAV JUDGMENT arrangement whereby property are distributed among family members does not require registration (paragraph 16 and 18).
36. He has relied on the decision in the case of Ram Charan Das vs. Girja Nandini Devi & Ors., AIR 1966 SC 323, wherein it is held that transaction of a family settlement entered into by parties is not transfer (paragraph 10)
37. He has relied on the decision in the case of Maturi Pullaiah and Anr. vs. Maturi Narasimham and Ors., AIR 1966 SC 1836, wherein it is held that familiar do not create any interest for immovable property and does not required to be registration.
38. He has relied on the decision in the case of Ranganayakamma and Anr. Vs. K.S.Prakash (dead) by heirs & Ors., (2008) 15 SCC 673, wherein head note H, I and K family settlement need not be registered relinquishing right to share in the joint family property need not be proceeded by any regular deed.
39. He has relied on the decision in the case of Subhan Rao & Ors., Parvathi Bai & Ors., (2010) 10 SCC 235, wherein it is held Page 24 of 31 HC-NIC Page 24 of 31 Created On Mon Sep 05 00:48:05 IST 2016 C/SA/109/2016 CAV JUDGMENT that concurrent finding of fact no interference.
40. He has submitted that if the plaint is read as whole, the same is totally vague and ambiguous and the present is a case shrewd and craftily drafting, having no definite cause of action, the averments are made of exemption and presumption and a meritless claim is placed for consideration which is hopelessly time barred and therefore, both the Courts below having considered the relevant judgments and having found that present is a case where power under Order 7 Rule 11(D) of the Code of Civil Procedure, 1908 is required to be exercised, and hence if rightly be in exercise and hence the plaint is rightly rejected by both the courts below and hence the present second appeal is required to be dismissed in the interest of justice.
41. Heard Ms.Mini Nair, learned counsel for the respondent No.4. She has submitted that the suit filed by the plaintiff is grossly barred by the law of limitation as the same is filed after a period of more than 52 years. She has submitted that there is no cause of action arises for filing the present Page 25 of 31 HC-NIC Page 25 of 31 Created On Mon Sep 05 00:48:05 IST 2016 C/SA/109/2016 CAV JUDGMENT suit. The present suit is filed by the plaintiff after they failed before the revenue authorities as they challenge the entry made in the year 1963 vide Entry No.1166 dated 14.3.1963 and certified on 14.5.1963 after issuing notice under Section 135(D) of the Bombay Land Revenue Code. The said entry was made as per the statement of Maniben Naranbhai. She also expired on 18.9.2005. Thus, the present suit is filed 09 years after the death of Maniben Naranbhai. She has submitted that mother can relinquish her interest in joint family property orally and not required to register the said document. In support of her submission she has relied on the decision in the case of Ramdas Chimna vs. Pralhad Deorao Ors., AIR 1965 Bombay 74 and also on the decision in the case of Mt. Akhaj and Ors., vs. Arjun Koeri and Anr., AIR 1952 Patna 67. She has submitted that both the learned Courts below have given reasoned order while allowing the application filed by the respondents and, therefore, no interference is required. Over and above learned counsel for the respondent No.4 has adopted the arguments of learned counsel for the respondent No.3.
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42. I have heard learned counsel for the respective parties. I have gone through the entire material produced on record. I have also gone through the orders passed by the Courts below and have considered the submissions advanced by both the sides as also reliance placed on the decisions.
43. For the purpose of examining the legality and the validity of the order passed below Exh.15, if both the orders under challenge in the present second appeal are looked into, it would be evident that the plaint was rightly rejected by the Courts below. The suit is filed after a period of 51 years after the death of Naranbhai, maternal grandfather of the appellant. The mother of the appellant, during her life time never claimed that she had a share in the property or she wanted share in the property or that she has not relinquished her share from any property. The mother of the appellant viz. Maniben also expired on 18.09.2005 and the present suit being Regular Civil Suit No.200 of 2014 is filed after 9 years. Vague and ambiguous averments are made in the plaint without any details of date, proof or documents or even no date is mentioned on which cause of action arose. Present is a Page 27 of 31 HC-NIC Page 27 of 31 Created On Mon Sep 05 00:48:05 IST 2016 C/SA/109/2016 CAV JUDGMENT case of crafty, shrewd and illusory pleadings made to overcome the bar of limitation.
44. This Court in the case of Becharbhai Zaverbhai Patel and Anr. vs. Jashbhai Shivabhai Patel and Ors., reported in 2013(1) GLR 398 has held as under : "It is not disputed that while considering application under Order 7, Rule 11(d) of the Code of Civil Procedure, the Court is required to consider the averments in the plaint and the supporting documents produced along with plaint. However, it cannot be disputed that if on the face of it and even considering the averments made in the plaint, it is found that the suit is clearly barred of law of limitation, the plaint can be rejected in exercise of powers under Order 7, Rule 11(d) of the Code of Civil Procedure. Even considering the decision of the Hon'ble Supreme Court in the case of N. V. Srinivasan Murthy v. Mariyamma (Dead) by Proposed L.Rs., reported in AIR 2005 SC 2897 as well as decision of the Hon'ble Supreme Court in the case of Dilboo (Smt.) (Dead) by L.Rs., [2000 (7) SCC 702] the plaint can be rejected in exercise of powers under Order 7, Rule 11(d) of the Code of Civil Procedure if it is found that even accepting all the averments made in the suit, it is found therefore, the suit is barred by law of limitation. Considering the above proposition of law laid down by the Hon'ble Supreme Court, it is required to be considered whether considering facts and circumstances of the present case and Page 28 of 31 HC-NIC Page 28 of 31 Created On Mon Sep 05 00:48:05 IST 2016 C/SA/109/2016 CAV JUDGMENT even considering averments made in the plaint and even accepting all the averments made in the plaint as they are, whether the suit is barred by law of limitation or not?"
In the aforesaid decision it is also held that, mere clever drafting in the plaint and by such vague averments and the pleading the cause of action in the plaint, the suit which is otherwise barred by law of limitation cannot be brought within a period of limitation.
45. Plaint is as regards revenue Entry No.1166 mutated in the revenue record after statements were given by Maniben and Ichhaben, Maniben being mother of appellant through whom the appellants are trying to litigate for alleged claim. Maniben has not signed anywhere or her signature is forged or fabricated cannot be believed in view of the fact that her signature is before the revenue talati, that apart 01.03.1963, she has never claimed that she never signed and now after a period of 51 years, totally bogus claim is being made by the appellant. What is sought to be challenged in the present proceedings is statement of 1963 given before the revenue talati. Such a claim can never be proved in the eye of law after a period of 51 years.
Page 29 of 31HC-NIC Page 29 of 31 Created On Mon Sep 05 00:48:05 IST 2016 C/SA/109/2016 CAV JUDGMENT The revenue authority has not condoned the delay in challenging the revenue entries. The relinquishment of right or relinquished right does not require registration under Section 70 of the Registration Act. Such oral submission in the present case is not required to be registered as there is no document of transfer and as a matter of fact the same is not transferred under the provisions of Transfer of Properties Act. Even otherwise, relinquishment that arose between first blood relations is to be looked into as routine practice in prevalent rural part of the country since decades. The present is a case of shrewd and crafty drafting, having no definite cause of action, the averments are made of assumptions and presumptions and a meritless claim is placed for consideration which is hopelessly time barred. Therefore, both the Courts below having considered the relevant judgments and having found that present is a case where power under Order 7 Rule 11(D) of the Code of Civil Procedure, 1908 is required to be exercised, it is rightly exercised and the plaint is rightly rejected by both the courts below.
46. For the foregoing reasons, the present Page 30 of 31 HC-NIC Page 30 of 31 Created On Mon Sep 05 00:48:05 IST 2016 C/SA/109/2016 CAV JUDGMENT second appeal is required to be dismissed, it is accordingly dismissed. In view of dismissal of second appeal the Civil Application No.4522 of 2016 also deserves to be dismissed and is dismissed. Interim relief stands vacated. No order as to costs.
(Z.K.SAIYED, J.) KKS After pronouncement of the judgment Mr.Jasani, learned counsel has requested to stay this order for a period of four weeks. Mr.Desai and Ms.Nair, learned counsel for the respondent Nos.3 and 4 respectively have objected to such request. Looking to the facts of the case and circumstances of the case, operation and implementation of present order shall stand stayed for a period of four weeks from today.
(Z.K.SAIYED, J.) KKS Page 31 of 31 HC-NIC Page 31 of 31 Created On Mon Sep 05 00:48:05 IST 2016