Gujarat High Court
Pankajkumar Mulshankar Teraiya vs Heirs Of Jivubhai Udesasng on 18 January, 2021
Author: Biren Vaishnav
Bench: Biren Vaishnav
C/CRA/169/2020 CAV ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CIVIL REVISION APPLICATION NO. 169 of 2020
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PANKAJKUMAR MULSHANKAR TERAIYA Versus HEIRS OF JIVUBHAI UDESASNG ========================================================== Appearance:
MR DM SHAH(5989) for the Applicant(s) No. 1for the Opponent(s) No. 1
DHAVAL A PARMAR(7780) for the Opponent(s) No. 6,6.1,6.2,6.3,6.4,7 MR AS VAKIL(962) for the Opponent(s) No. 5 NOTICE SERVED(4) for the Opponent(s) No. 1.1,1.3,1.5,1.6,3,4 UNSERVED EXPIRED (N)(9) for the Opponent(s) No. 1.2,1.4,2 ========================================================== CORAM: HONOURABLE MR. JUSTICE BIREN VAISHNAV Date : 18/01/2021 CAV ORDER 1 This Revision Application under Section 115 of the Code of Civil Procedure has been filed by the Original-Defendant no.5 challenging the Judgement and Order dated 5.3.2020 passed by the Additional Senior Civil Judge, Sanand dismissing the Application Exh.149 filed by the present Applicant, under Order VII Rule 11 of the Code Of Civil Procedure,1908 in Special Civil Suit No.17 of 2018.
2. FACTS IN BRIEF ARE AS UNDER:
2.1 The Plaintiffs (Respondents nos.6 and 7 herein) Page 1 of 56 Downloaded on : Wed Jan 12 01:47:25 IST 2022 C/CRA/169/2020 CAV ORDER filed Special Civil Suit No.477 of 2007 which was then renumbered on transfer to Sanand Court as Special Civil Suit No.17 of 2018.The Suit is filed for declaration that Jivubhai, the sole owner of the land in question was entitled to make a Will and the land bequeathed to the Plaintiffs by such Will was in ownership and possession of the Plaintiffs. A further declaration was prayed that the sale deed dated 29.05.2007 made by the defendant no.1/2,Vanubhai with the Defendant No.5,be cancelled. Since pending the suit, the defendant no.5 sold the said land by a sale deed dated 4.2.2010 to one Gatil Properties Private Limited, the said party was joined as defendant no.6 and an amended prayer was made to set aside the sale deed dated 4.2.2010 by the defendant no.5 with defendant no.6.
2.2 Pleadings in the Plaint suggested that the land bearing survey no.598/2 ad-measuring 7386 sq. meters of Village Godhavi,Taluka Sanand was of the Original Ownership of Veluji Baliyaji which then came to the share of Jambhai Baliyaji.Jambhai sold the land in 1965 to Jivubhai and a revenue entry No.955 was recorded in the revenue records. The case of the Page 2 of 56 Downloaded on : Wed Jan 12 01:47:25 IST 2022 C/CRA/169/2020 CAV ORDER pliantiffs is that since there were cordial relations between Jivubhai and them, Jivubbhai by a Will dated 4.4.1986 bequeathed the land to the plaintiffs. On Jivubhai's death on 28.5.1986 the land was entered into the revenue records in the name of the plaintiffs and a mutation entry 2466 was certified on 17.12. 1986.This was made after the heirs of Jivubhai on 5.09.1986 gave NOC before the Revenue Authority. On the death of Munna Singh, the purchaser, the names of the heirs of Munna Singh plaintiffs were also entered into in the Revenue Records. 2.3 The plaintiffs continued to be in possession and ownership of the land in question, which however was sought to be reversed after 15 years when the Revenue Entry 2466 made in 1986 was sought to be taken in suo-motu revision in the year 2004 after 18 years or so on 6.7. 2004.The revenue entry was reversed in 2005 which was unsuccessfully challenged by the plaintiffs before the Deputy Collector and the Collector and on the date of the suit Revision proceedings were pending before the SSRD. 2.4 Based on the order of the District Collector dated 20.12.2005 the defendant number ½ sold the land to Page 3 of 56 Downloaded on : Wed Jan 12 01:47:25 IST 2022 C/CRA/169/2020 CAV ORDER the defendant no.5 on the basis of the revenue entries made in favour of the defendants 1/1 to 1/6, heirs of Jivubhai. The land was sold to the defendant no.5 by way of a registered sale deed on 29.05.2007.This engineered a cause of action for the plaintiffs who were otherwise in possession and ownership on the basis of the entry of 1986 to challenge the sale deed dated 29.5. 2007.It was on these averments and facts that declarations in the suit were sought. The Trial Court by an order dated 5.12.2007 granted injunction. However, since pending the suit the lands were further sold by the defendant no.5 to Gatil Properties, the plaint had to be amended and a declaration to set aside the sale deed of 4.2.2010 was prayed for by also adding the defendant no.6 the subsequent purchaser. 2.5 On 25.07.2017, the defendant no.5 after filing the written statement in the year 2008, filed an Application under Order VII Rule 11 of the Code of Civil Procedure,1908 praying that the suit of the Plaintiffs be dismissed.
2.6 According to the Applicant/original defendant no.5 the plaintiffs could not claim ownership and declaration of a transfer of land based on a Will as the plaintiffs Page 4 of 56 Downloaded on : Wed Jan 12 01:47:25 IST 2022 C/CRA/169/2020 CAV ORDER were non-agriculturists and the transfer by Jivubhai to the plaintiffs was hit by the provisions of Section 63 of the Gujarat Agricultural And Tenancy Act, 1948.The sale therefore, according to the Applicant of Order VII Application was contrary to several decisions of the High Court and the Supreme Court and was therefore void. The suit therefore did not only not disclose a cause of action but also was therefore barred by law. The suit, according to the Applicant was also barred by limitation as a declaration for ownership and possession was sought on the basis of a Will of 1986, after 21 years and therefore the suit, in accordance with the provisions of Article 58 of the Limitation Act was not brought within 3 years from the date of first accrual of the cause of action. By the impugned order dated 05.03.2020, the application under Order VII Rule 11 has been rejected. Hence, this Revision Application.
3 Mr.Mihir Thakore, learned Senior Counsel appearing with Mr.D.M.Shah, learned advocate for the petitioners and Mr.Apurva Vakil, learned advocate for respondent No.5(original defendant No.6 who filed a purshis supporting Page 5 of 56 Downloaded on : Wed Jan 12 01:47:25 IST 2022 C/CRA/169/2020 CAV ORDER the application of defendant No.5 under Order VII Rule 11), made the following common submissions:
3.1 Mr.Mihir Thakore, learned Senior Counsel would invite the attention of the Court to various dates. He would submit that a Will was made by Jivubhai, by virtue of which, the property vested in the plaintiffs and respondent Nos. 6 and 7 in the present case.
Admittedly, the plaintiffs were not agriculturists, and therefore, the Mamlatdar rightly on 06.07.2004 reversed the revenue entry by virtue of which, the land transaction in favour of the plaintiffs were held to be in violation of Section 63 of the Gujarat Tenancy and Agricultural Lands Act. He would submit that after reversal of the revenue entry, the heirs of deceased Jivubhai who then became the owners, sold the land in favour of the present applicant on 29.05.2007. This was done pursuant to the registration of revenue entry in their favour in 2010. The applicants, sold the land to the defendant No.6 only after three years i.e. on 11.09.2013. An application for amendment was moved, which was granted on 13.10.2017. An application under Order VII Rule 11 was moved much prior to the amendment, Page 6 of 56 Downloaded on : Wed Jan 12 01:47:25 IST 2022 C/CRA/169/2020 CAV ORDER contending that the plaint was barred by law, as no cause of action was made out in accordance with the provisions of Order VIII Rule 11 which is evident from the statement in the plaint, as Mr.Thakore, learned Senior Counsel, would emphasize.
3.2 Mr.Mihir Thakore, learned Senior Counsel's primary contention was that the suit was barred in accordance with the provisions of Section 63 of the Tenancy Act and in addition thereto, reliance was placed on Section 85 to submit that the view of the trial Court in rejecting the application Order VII Rule 11 was per se bad. The Civil Court's jurisdiction, in accordance with Section 85 was expressly barred. He would submit therefore, that there was no question of determination on evidence on the basis of examination of documents. Mr.Thakore, learned Senior Counsel and Mr.A.S.Vakil, learned advocate, would therefore submit that it was the primary duty of the Court in accordance with the provisions of Order VII Rule 11 to perform its obligation and reject the plaint, as it did not only not disclose the cause of action, but it was evident from the statement in the plaint that the suit was barred. It was an attempt by Page 7 of 56 Downloaded on : Wed Jan 12 01:47:25 IST 2022 C/CRA/169/2020 CAV ORDER the plaintiff to indulge in clever drafting of the plaint with a view to create an illusion of the cause of action. In support of his submission, Mr.Thakore, learned Senior Counsel and Mr.Vakil, relied on the following decisions:
(I) (2004) 3 SCC 137 in the case of Sopan Sukhdev Sable vs. Assistant Charity Commissioner (Volume-
II, pages 193-207) (II) (2015) 8 SCC 331 in the case of Guru Raj Reddy Vs. P.Neeradha Reddy.
(III) (2014) 16 SCC 125 in the case of Surjit Kaur Gill Vs. Adarsh Kaur Gill (volume-II, pages 208-
211).
(IV) (2017) 13 SCC 174 in the case of Madanuri Sri Rama Chandra Murthy Vs. Saiyed Jalal.
(V) (2018) 5 SCC 644 in the case of Soumitra Kumar Sen Vs. Shyamal Kumar Sen.
3.3 The learned counsels would submit that the suit was not only barred as it did not disclose the cause of action, but also it was barred by law of limitation. Reiterating the dates, he would submit that the Will pursuant to which the land was sought to be claimed Page 8 of 56 Downloaded on : Wed Jan 12 01:47:25 IST 2022 C/CRA/169/2020 CAV ORDER by them of 04.04.1986, Jivubhai died on 28.05.1986 and therefore a declaration was claimed to be in possession of lands on the basis of Will of 1986 after 21 years. He would submit that the declaration prayed for in paragraph 12(A) was incapable of being granted in view of Section 63 of the Tenancy Act. In support of his submissions, reliance was placed on the following decisions:
(i) 2000 (2) GLR 1784 in the case of Rajenbhai Baldevbhai Shah Vs. Baijiben Kababhai Patanwadia & Ors.
(ii) AIR 2011 Guj 55, in the case of Shamjibhai Keshavjibhai Kansagra Vs. principal Secretary, Revenue Department (Appeals).
(iii) 2020 (2) GLH 651 (SC) in the case of Vinodchandra Sakarlal Kapadia Vs. State of Gujarat & Ors.
3.4 Mr.Thakore, learned Senior Counsel, and Mr.Vakil, learned advocate, would submit that reliance on the judgment and order of the S.S.R.D dated 24.03.2017 was misconceived. The same was passed ten years after the suit was filed. Mr.Thakore,learned Senior Counsel, would submit that even in the case of suit for Page 9 of 56 Downloaded on : Wed Jan 12 01:47:25 IST 2022 C/CRA/169/2020 CAV ORDER specific performance of an agreement to sell agricultural land in breach of Section 43 of the Tenancy Act, the plaint had been rejected. Reliance was placed on a decision in the case of Ganpatlal Manjibhai Khatri rendered in First Appeal No. 4979 of 2018 dated 02.08.2019.
3.5 The next submission of the learned counsels was that the suit was filed on 05.12.2007, whereas, an amendment was moved on 11.09.2013. On 25.07.2017, an application Exh.149 seeking rejection of the plaint was filed. Merely because there were evidence subsequent to the filing of the plaint or the present application, that would not take away the plaintiff's right under Order VII Rule 11. They would submit that the trial Court, therefore, wrongly placed reliance upon the amended plaint on the aspect of limitation to dismiss the present application. He would submit that it was incumbent upon the trial Court to hear the application under Order VII Rule 11 first.
3.6 Learned counsels would submit that the powers under Order VII Rule 11 can be exercised at any stage of the suit from the time the plaint is presented up to Page 10 of 56 Downloaded on : Wed Jan 12 01:47:25 IST 2022 C/CRA/169/2020 CAV ORDER the final judgment. He would submit that though the trial Court has not rejected the application on the ground that it was filed belatedly, the submission of the other side that it was filed belatedly, ought not to be accepted. For the support, they relied on the followed judgments:
(i) (1998) 2 SCC 70 in the case of ITC Limited Vs. Debts Recovery Appellate Tribunal.
(ii) (2004) 3 SCC 137 in the case of Sopan Sukhdev Sable vs. Assistant Charity Commissioner.
(iii) (2003) 1 SCC 557 in the case of Salimbhai Vs. State of Maharashtra.
(iv) (2012) 8 SCC 706 in the case of Church of Christ Charitable Trust and Educational Charitable Society Vs. Ponniaman Educational Trust.
3.7 Learned counsel for the applicants and the defendant No.5 and 6 who has filed purshis supporting the application would submit that the reliefs prayed vide paragraph 12(B) and 12(C) are only consequential reliefs. If relief in paragraph 12(A) cannot be granted, the consequential reliefs also cannot be so granted. Learned counsels would further Page 11 of 56 Downloaded on : Wed Jan 12 01:47:25 IST 2022 C/CRA/169/2020 CAV ORDER submit that the plaint was liable to be rejected on the ground of limitation. The trial Court committed an error in relying on the amended plaint and also with regard to the date of knowledge of the registered sale deed dated 04.02.2010 which was subsequent to the filing of the suit in 2007. They would submit that the trial Court failed to appreciate that the date of knowledge of any registered sale deed is the date of registration itself. The sale deed was registered on 04.02.2010 and the amendment application was filed on 11.09.2013 i.e. more than three years after the registration of the sale deed, and therefore, the suit was apparently barred under the law of limitation. Reliance was placed on the following decisions:
(i) (2000) 7 SCC 702 in the case of Dilboo Vs. Dhanraj and ors.
(ii) (2013) 1 GLR 398 in the case of Becharbhai Zaverbhai Patel Vs. Jasubhai Patel.
(iii) (2019) SCC 372 in the case of Raghvendra Sharan Sing Vs. Prassana Sing.
3.8 With regard to limitation in original unamended plaint, at para 12(A), the learned counsels would Page 12 of 56 Downloaded on : Wed Jan 12 01:47:25 IST 2022 C/CRA/169/2020 CAV ORDER submit that the learned trial Court failed to examine the question of limitation. Reliance was placed on Article 58 of the Limitation Act, 1963, to submit that the suit to obtain any declaration had to be filed within three years from the time when the right to sue accrues. Jivubhai expired on 28.05.1986, the mutation entry was made on 21.09.1986. The right to sue, therefore, first accrued in 1986, whereas, the suit was filed in the year 2007. Admittedly, the suit was barred in accordance with the provisions of Article 58 of the Limitation Act. Reliance was placed on the following decisions:
(i) (2014) 16 SCC 125 in the case of Surjit Kaur Gil Vs. Adarsh Kaur Gil.
(ii) (2016) 1 SCC 332 in the case of L.C.Hamumanthapa since deceased Vs. H.B.Shivakumar.
3.9 The next submission that was made was that the words in Order VII Rule 11 (d) which to the effect state that barred by any law would include not only the statute law, but also the judgment law. Reliance was placed on 2016 (3) GLR 2393. In view of this and the judgment of the Division Bench of this Court Page 13 of 56 Downloaded on : Wed Jan 12 01:47:25 IST 2022 C/CRA/169/2020 CAV ORDER confirmed by the Supreme Court in the case of Rajubhai Belabhai (supra), the submission was that now in view of the decision by which the transaction under Section 63 is held to be bad, the suit ought to have been dismissed.
3.10 Perusal of the plaint, according to the learned counsels, would indicate that there is no averment in the plaint even to suggest that the plaintiffs are agriculturists. Subsequent developments like the pendency of the special civil applications cannot be a ground to continue the suit and the suit therefore must be dismissed.
4 Mr.Anshin Desai, learned Senior Counsel, appeared on behalf of Mr.Dhaval Parmar, learned advocate for respondents Nos. 6.1 to 6.4 and 7, original plaintiffs and made the following submissions:
4.1 He would contend that it is misconceived on the part of the learned counsels Mr.Thakore and Mr.Vakil to submit that the suit was barred by either not disclosing the cause of action or barred by limitation.
Reading paragraph 11 of the plaint, Mr.Desai, learned Senior Counsel, would submit that it would be very Page 14 of 56 Downloaded on : Wed Jan 12 01:47:25 IST 2022 C/CRA/169/2020 CAV ORDER clear that the cause of action had arisen as the revenue entry mutated in favour of the plaintiffs and a certificate dated 17.12.1986 was for the first time on 20.12.2005 in the hierarchy of revision application was set aside. The cause of action accrues of the revenue entry 5 to 51 which was mutated in the name of the heirs of the deceased Jivubhai on 28.09.2006. Relying on the plaint, particularly para 12, he would submit that there were three prayers made in the plaint. The first was to declare that the plaintiffs were the owners and in possession of the property which was bequeathed by Will, the second was for a declaration that the heirs of Jivubhai had no right, title or interest and the third is that the sale deed dated 29.05.2007 executed be quashed and set aside. The suit was within the period of limitation. 4.2 He would submit that Exh.5 was decided on 05.12.2007 and a status quo was granted. Written statement was filed on 11.02.2008 and it was only after ten years of the completion of pleadings that the applicants of the civil revision application on 25.07.2017 filed the present application Exh.149 under Order VII Rule 11. Based on this, he would Page 15 of 56 Downloaded on : Wed Jan 12 01:47:25 IST 2022 C/CRA/169/2020 CAV ORDER submit as under:
(i) From the facts, Mr.Desai, learned Senior Counsel, would submit that on 05.09.1986, all the heirs and legal representatives of Jivubhai had their statements recorded before the revenue authorities and accordingly revenue entry 2466 was mutated in favour of the plaintiffs. He would draw the attention of the Court to the revenue entry and submit that Section 135(D) notice was received and was certified after a no objection by the legatees of Jeevubhai on 30.03.1989. Not only was that the entry certified, but the legatees of the plaintiffs names were entered into on the death of Munna Singh.
The heirs of the deceased Jivubhai did not raise any objection to the entry then made. It was only after 14 to 15 years that the mamlatdar took up Suo Motu proceedings and quashed the entry in favour of the plaintiffs on 20.12.2005.
(ii) He would rely on several decisions of this Court as well as the Supreme Court to submit that if an order is void they are invalid under the limitation prescribed and the proceedings have been initiated within a reasonable time. Reliance was placed on 2016 (2) GLR 1021 in the case of Bharatbhai Naranbhai Vegda & Ors. Vs. Page 16 of 56 Downloaded on : Wed Jan 12 01:47:25 IST 2022 C/CRA/169/2020 CAV ORDER State of Gujarat & Ors., 2011 (3) GLR 2587 in the case of Rameshbhai Ambalal Shah vs. State of Gujarat & Anr., and in the case of AIR 1969 SC 1297 in the case of The State of Gujarat vs. Patil Raghav Natha & ors. Accordingly to Mr.Desai, learned Senior Counsel, taking advantage of the Suo Moto proceedings in the year 2004, the entire issue got resurrected. Suo Motu proceedings are held to be bad as so invoked not within a reasonable time, the consequential action of deleting the revenue entries which were otherwise in favour of the plaintiffs would fail.
(iii) The doctrine of pari delicto, according to Mr.Desai, learned Senior Counsel, would apply to the facts of the present case. It was only after the suo motu proceedings were initiated and orders were passed that the client of Mr.Thakore, learned Senior Counsel, have sought to take advantage of these proceedings.
(iv) Mr.Desai, learned Senior Counsel, would submit that on 29.05.2007, the heirs of Jivubhai sold the land without even mentioning fact about legal ownership, admittedly, when they were not the owners. The land was then sold by the defendant No.5 to the defendant No.6 without base of any legal ownership. Reliance was placed on the Page 17 of 56 Downloaded on : Wed Jan 12 01:47:25 IST 2022 C/CRA/169/2020 CAV ORDER decisions reported in 1994 (1) GLH 20 in the case of Mavjibhai Dharsibhai vs. State of Gujarat, (2008) 7 SCC 748 in the case of Deepak Agro Foods vs. State of Rajasthan & Ors, and reported in AIR 1968 SC 1358 in the case of Jambu Rao Satappa Kocheri vs. Neminath Appayya Hanamannayar.
(v)Mr.Desai, learned Senior Counsel, would rely on provisions of Section 43, 63 and 84(C) of the Gujarat Tenancy & Agricultural Lands Act, 1948 and submit that the word used in the suit is "invalid" and therefore unless the Act is invalidated by the competent Court, it cannot be held to be void. There is an inherent distinction between void transaction and an invalid transaction. Cause of action arose on 28.09.2006 because of the revenue entry mutated in favour of the heirs of Jivubhai, and therefore, the suit cannot be said to be barred when filed in 2007 after the revenue entry was mutated and the sale that took place pursuant thereto.
(vi) He would further submit that unless and until para 12(A) is granted, the consequential reliefs would fail was an incorrect argument, inasmuch as, prayer 12(C) is praying for declaration which has to be read with prayer Page 18 of 56 Downloaded on : Wed Jan 12 01:47:25 IST 2022 C/CRA/169/2020 CAV ORDER 12(A) and cannot be read vice-versa.
(vii) He would further submit that it is well settled that the plaint has to be read in detail and bits and pieces cannot be taken up from the plaint as is sought to be done.
(viii) Mr.Desai, learned Senior Counsel, would also reflect upon the conduct of the petitioner and submit that despite an order of status quo, the defendants - applicant of Order VII Rule 11 applied for change of user which was granted. Despite three years of injunction in the suit and in the petition pending before this Court, namely, two special civil applications, as such status quo was altered. Status quo orders would tantamount to injunction. Reliance was placed on a decision reported in 1993 (1) GLR 434 in the case of Administrator of Shri Shakti Group, Chandrakant Natverlal Agravat vs. Hargovindbhai Shamjibhai and Sons, and in the case of Kalpataru Land Development Pvt. Ltd vs. Vishnubhai Ambalal Patel (decd) Thru Heirs Jamnadas Vishnubhai Patel & Ors., reported in 2007 (4) GLR 3361.
(ix) Mr.Desai, learned Senior Counsel, would submit that in fact now it is abundantly clear that the defendant No.5 Page 19 of 56 Downloaded on : Wed Jan 12 01:47:25 IST 2022 C/CRA/169/2020 CAV ORDER sold the land in favour of defendant No.6 who has purchased the same in order to defeat the purpose of the suit and multiply the litigations and which amounted to contempt. Reliance was placed on 2019 (4) GLR 3267 in the case of Amitkumar Mahendragiri Goswami & Ors vs. Ishwarbhai Daulatram Vanidani & ors., and in the case of Bharatbhai Jivrajbhai vs. Chaganbhai Samabhai reported in 2012 (5) GLR 4148 and in the case of Ghanshyam Sarda vs. Sashikant Jha, Director, M/s. J.K.Jute Mills Company Limited & Ors., reported in (2017) 1 SCC 599.
(x) Mr.Desai, learned Senior Counsel, would submit that the application under Order VII Rule 11 is not maintainable, and therefore, should be rejected. He would submit that the application was hopelessly time barred, hit by delay and latches and specially looking to the conduct of the applicants it ought to have been rejected and has rightly been so rejected. Reliance was placed on the decision reported in (2007) 10 SCC 59 in the case of Ram Prakash Gupta vs. Rajiv Kumar Gupta and others.
(xi) Mr.Desai, learned Senior Counsel, would submit that it was misconceived on the part of the learned counsels for the applicant and the defendant No.6 to rely on the Page 20 of 56 Downloaded on : Wed Jan 12 01:47:25 IST 2022 C/CRA/169/2020 CAV ORDER decision of the first appeal Ganpatlal Khatri (supra), because in that case also the Division Bench confirmed the order of the trial Court rejecting the plaint, and thereafter, holding in paragraph 9 that a seller has no right to maintain and continue proceedings once the property is already transferred by way of a registered sale deed. He would submit that from the conduct of Jivubhai and his heirs, it is clear that at no stage have they challenged the validity of the Will or have come forth to challenge the acquisition of property by the plaintiffs, and therefore, the reliance on that decision is misconceived.
(xii) Mr.Desai, learned Senior Counsel, submitted that Mr.A.S.Vakil, learned advocate, cannot take support of the decisions and the submissions by merely filing a purshis before the trial Court that he would support the Order VII Rule 11 of the application of the defendant No.5. He would submit that it was obligatory on the part of the newly added defendant to make inquiries before purchasing the lands in question. Reliance was placed on 2019 (3) GLR 1996 in the case of Bharatbhai Parshotambhai Gohel vs. Niravkumar Jitendrabhai Jethva & Anr.
Page 21 of 56 Downloaded on : Wed Jan 12 01:47:25 IST 2022
C/CRA/169/2020 CAV ORDER (xiii) Reliance placed on the decision of the Division
Bench of this Court holding that transfer by Will was hit and barred under Section 63 which was so confirmed by the Supreme Court, Mr.Desai, learned Senior Counsel, would invite the attention of the Court to the last paragraph of the decision to submit that the Court left it for the parties to decide depending upon the facts of each case and equities. The decision, therefore, cannot be pressed into service to oust the suit of the plaintiffs.
(xiv) Further submitting, Mr.Desai, learned Senior Counsel, would submit that the cases of fraud, breach of injunction, suppression of material facts and on the law of limitation, are as rightly held by the trial Court triable issues, and therefore, an application under Order VII Rule 11 cannot be allowed and the plaint be rejected. Reliance was placed on the following decisions:
(i) (2019) 10 SCC 226 in the case of Shaukathussain Mohammed Patel vs. Khatunben Mohmmedbhai Polara.
(ii) 2011 (1) GLR 637 in the case of Bhupendrabhai Hasmukhbhai Dalwadi & Ors vs. Savitriben Ganumal Krishnani (Decd.) & Ors.
(iii) (2018) 6 SCC 422 in the case of Chhotanben and Page 22 of 56 Downloaded on : Wed Jan 12 01:47:25 IST 2022 C/CRA/169/2020 CAV ORDER Another vs. Kiritbhai Jalkrushnabhai Thakkar and others.
(iv) (2006) 5 SCC 658 in the case of Balasaria Construction (P) Ltd vs. Hanuman Seva Trust & Ors.
(v) 2015 (3) GLR 2760 in the case of Bahadurbhai Laljibhai malhotra vs. Ambalal Joitaram Heir of Joitaram Ranchhoddas and another.
(xv) Making these submissions, the learned counsel for the respondent would submit that the order of the trial Court is just and proper, and therefore, the civil revision application be dismissed.
5 Having heard the learned counsels for the respective parties, before considering the question at hand it would be necessary to set out, at the cost of repetition, the relevant dates narrating facts, which are as under:
Sr Date Particulars
No.
1 04.04.1986 / One Jivubhai, owner of agricultural land
28.05.1986
bearing Survey no. 598/2 admeasuring
7386 sq.mtrs. Of village Godhavi, Taluka Sanand, District Ahmedabad ("the land) made a Will dated 04.04.1986 (Annexire- Page 23 of 56 Downloaded on : Wed Jan 12 01:47:25 IST 2022
C/CRA/169/2020 CAV ORDER
4. [ages 31-35 Mark 3/5) and bequeathed the agricultural land to the present Respondent Nos. 6/1 to 6/4 and 7 (hereinafter referred to as the "Plaintiffs"). The said Will dated 04.04.1986 does not contain any averment that the legatees - Plaintiffs are agriculturists. Jivubhai expired on 28.05.1986.
2 05/09/86 Alleged statement (Annexure-6, page 37, Mark 3/7) of the heirs of Jivubhai (i.e. present Respondent Nos.1/1 to 1/6before the revenue authority.
3 21.09.1986 / ME no.2466 (Annexure-5, page 36, Mark 17.12.1986 3/6) mutating the names of the legatees
- Plaintiffs. The said ME no.2466 is certified on 17.12.1986.
4 30.03.1989 / Munnasingh, predecessor of Plaintiff 18.12.1989 / Nos.1/1 to ¼ expired. ME no. 2773 dated 02.01.1990 18.12.1989 (Annexure-7.page 38, Mark 3/8) mutating names of Plaintiff Nos. 1/1 to ¼ as heirs of Munnasingh. ME No.2773 is certified on 02.01.1990.
5 06.07.2004 / Mamltadar, Sanand filed RTS Appeal 20.12.2005 No.38 of 2004 before Deputy Collector for cancelling ME no.2466 of the Plaintiffs. Judgement and order (Annexure-8, pages 39-42, Mark 3/9) of the Deputy Collector allowing RTS Appeal No. 38 of 2004 and cancelling ME no.2466.
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6 2006 Being aggrieved, the Plaintiffs preferred
LB Revision Application No.51 of 2006
(Mark 3/10) before the Collector.
7 28.09.2006 ME no.5251 (Annexure-9, page 43, Mark
3/12) mutating the names of the
Respondent Nos.1/1 to 1/6 i.e. heirs of the testator-Jivubhai.
8 14.11.2006 ME No.5252 (Annexure-10, page 44-44A,
Mark 3/13) mutating name of
Respondent No.1/2 - Vanubhai because
the other heirs waived their rights in the agricultural land in favour of Respondent No.1/2 - Vanubhai.
9 03/01/07 Judgement and order (Annexure-11.
Page 45-48B, not produced along with the suit) of the Collector dismissing LB Revision Application No.51 of 2006 of the Plaintiffs and confirming the cancellation of ME No.2466. Based upon the said judgement and order, ME no.
5391 (Annexure-12, page 49, Mark 3/14) is made in the revenue records.
10 2007 Being aggrieved by the judgement and order dated 03.01.2007 of the Collector, the Plaintiff's filed Revision Application No. 25 of 2007 before the SSRD.
11 29.05.2007 / Registered sale deed (Annexure-13, 09.07.2007 pages 50-66Q, Mark 3/15) by respondent No.1/2 - Vanubhai (i.e. the heir of the testator - Vanubhai) in favour of the present Petitioner - Defendant No.5 in Page 25 of 56 Downloaded on : Wed Jan 12 01:47:25 IST 2022 C/CRA/169/2020 CAV ORDER respect of the land. ME no. 5629 dated 09.07.2007 (Annexure-14, page 67, Mark 3/15) based upon registered sale deed dated 29.05.2007 in favour of the defendant No.5.
12 05/12/07 Present Suit (plaint at Annexure-15, pages 68-75) is filed by the Plaintiffs praying interalia (pages 73-74 of the CRA) for a declaration that the agricultural land was of the individual ownership of Jivubhai, that Jivubhai was entitled to make the said Will, that on the death of Jivubhai, the names of the Plaintiffs were mutated and the Plaintiffs thereby came in possession of and became owners of the land and to pass a decree accordingly, for a further declaration that the Defendant Nos.1/1 to 1/6 have no right, title and interest in the said land, for cancellation of the registered sale deed dated 29.05.2007 in favour of the Defendant No.5, etc. Along with the Suit, the Plaintiffs have produced 16 documents vide list (Exhibit3)(Annexure-16, pages 76-77). Along with the Suit, the Plaintiffs also filed a separate application (Exhibit 5) (Annexure-17, pages 78-84) for temporary injunction. The Trial Court passed ex-parte order dated 05.12.2007 Page 26 of 56 Downloaded on : Wed Jan 12 01:47:25 IST 2022 C/CRA/169/2020 CAV ORDER (Annexure-17, pages 84-85, 85I-85J) requiring parties to maintain status quo. A separate application (Exhibit 7) is filed by the Plaintiffs to carry out commission work. Commissioner's report (Annexure- 18, pages 86-95H) indicates possession (page 95F) of the petitioner.
Developments after filing the Suit 13 11/02/08 The Petitioner - Defendant No.5 filed written statement (Exhibit 24) 14 01.04.2008 / NA Order:
17.12.2008 / The Petitioner-Defendant No.5 made 06.01.2009 / 07.03.2018 application to the District Development Officer ("DDO") for obtaining NA permission under Section 65 of the Gujarat Land Revenue Code ("Code") in respect of the land and two other survey numbers. The DDO by order dated 17.12.2008 granted NA permission.
Based upon the NA order, ME no.6311 dated 06.01.2009 is made in the revenue records. The NA order dated 17.12.2008 and ME no. 6311 are presently subject matter of challenge by the Plaintiffs before this Hon'ble Court by way of SCA No.2126 of 2018. The prayers are reproduced in paragraph 2.21 of the present CRA. This Hon'ble Court has by order dated 07.03.2018 (i.e. 11 years after the present Suit) directed the parties to maintain status quo with Page 27 of 56 Downloaded on : Wed Jan 12 01:47:25 IST 2022 C/CRA/169/2020 CAV ORDER regard to the entry (i.e. ME no. 6311).
15 04.02.2010 / Sale deed by the Petitioner - Defendant 26.04.2010 / no.5 in favour of Defendant no.6 in 28.06.2010 respect of the land as well as the other two survey numbers. Based upon the said sale deed, ME no. 6957 dated 26.04.2010 is made in the revenue records in the name of Defendant No.6 and the same is certified on 28.06.2010. 16 11/09/13 More than three years after the registered sale deed dated 04.02.2010, the Plaintiffs filed application (Exhibit
118) (Annexure-19, pages 96-102) seeking amendment ("Amendment Application") of the plaint for impleading Defendant no.6 and for cancellation of Defendant No.6's sale deed dated 04.02.2010.
17 23.08.2013 The Plaintiffs produced further 9 documents vide further List (Exhibit 112) (Annexure-22, pages 112-113).
18 11/09/13 More than three and half years after the sale dated 04.02.2010, the Plaintiffs have filed separate application (Exhibit 116) under Order 39 Rule 2A of the CPC and Contempt of Court Act alleging that the sale deed dated 04.02.2010 by the Defendant No.5 to the Defendant No.6 is in breach of the ex-parte order dated 05.12.2007.
19 The Suit is transferred to the Court of Page 28 of 56 Downloaded on : Wed Jan 12 01:47:25 IST 2022 C/CRA/169/2020 CAV ORDER
Principal Civil Judge, Sanand and lastly renumbered Special Civil Suit No. 17 of 2018.
20 24.03.2017 / Almost 10 years after the present Suit, 31.07.2017 the SSRD dismissed Revision Application No. 25 of 2007 of the Plaintiffs and thereby confirmed the cancellation of the said ME no. 2466 which was in the name of the Plaintiffs. Being aggrieved, the Plaintiffs have preferred before this Hon'ble Court SCA 10462 of 2017. This Hon'ble Court has vide order dated 31.07.2017 granted interim relief in terms of paragraph 16(C). (paragraph 2.19 of the CRA).
21 25.07.2017 The Petitioner - Defendant no.5 filed the
present Application (Exhibit 149)
(Annexure-23, pages 114-121) under
Order VII Rule 11 of the CPC seeking
rejection of the plaint. The plaintiffs filed their Affidavit-in-reply (Exhibit 154) (Annexure-24, pages 122-126) to the Application (Exhibit 149).
22 13.10.2017 Pending the present Application (Exhibit
149) under Order VII Rule 11 of the CPC, the Trial Court vide judgement and order (Annexure-20, pages 103-103J) granted the amendment application.
The amended plaint is at Annexure-21, pages 104-111.
23 09/05/19 Defendant No.6 filed purshis (Annexure- Page 29 of 56 Downloaded on : Wed Jan 12 01:47:25 IST 2022
C/CRA/169/2020 CAV ORDER 25, pages 127) (in substance) adopting the present Application (Exhibit 149) of the Petitioner - Defendant no.5 filed under Order VII Rule 11 of the CPC.
24 05/03/20 Impugned judgement (Annexure-1, pages
20-28) dismissing the present
Application (Exhibit 149) of the
Petitioner - Defendant No.5.
5.1 From the citations and case laws relied upon by both
sides in context of exercise of powers by a Court in applications filed under Order VII Rule 11 what briefly needs to be kept in mind is:
(a) The relevant facts which need to be looked into for deciding an application under Order VII Rule 11 are the averments in the plaint. The pleas taken by the defendant in the written statement would be wholly irrelevant.
(b) The power can be exercised at any stage of the suit.
(c) The Court is obliged to reject the plaint if it is hit by any of the infirmities provided in the four clauses of Order 7 Rule 11.
(d) The plaint has to be read as a whole. There cannot
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be any compartmentalisation, dissection, segregation and inversions of the language of the various paragraphs in the plaint. The pleading has to be read as a whole to ascertain its true impact. The intention of the party is to be gathered from the tenor and terms of its pleadings taken as a whole. Facts necessary to formulate a complete cause of action must be stated. The function of particulars is to present a full picture of the cause of action with such further information in detail as to make the opposite party understand the case he will have to meet. The consideration therefore has to be thus keeping these pointers in view.
5.2 The first issue that needs to be addressed is whether, in facts of the present case, does the statement in the plaint itself reveals that the suit does not disclose a cause of action or apparently shows that the same is contrary to law. That is, no declaration of possession and ownership can be sought on the basis of a Will when the transaction is hit by Section 63 of the Gujarat Tenancy and Agricultural Lands Act, 1948. And whether the Suit is barred by Article 58 of the Limitation Act because such a declaration is prayed for after 21 years. Also whether even if the amended plaint is considered a registered Page 31 of 56 Downloaded on : Wed Jan 12 01:47:25 IST 2022 C/CRA/169/2020 CAV ORDER sale deed of 04.02.2010 of which there should be deemed knowledge is sought to be challenged by way of an amendment beyond three years on 11.09.2013. 5.3 The suit is filed in December 2017. Reading paragraph 11 of the plaint suggests that the cause of action arose when the revenue entry 2466, which was mutated in favour of the plaintiff was set aside on 20.12.2005 suo motu and as a result thereof Jivubhai's heirs (original owners heirs) had their names mutated on 28.09.2006 and based on such revenue entry they sold the land to defendant no.5. The revenue entry of 28.09.2006 came to the knowledge of the plaintiffs on 05.11.2007 when it was revealed that land of which they were owners and in possession of was sold by a registered sale deed on 29.05.2007 to the defendant no.5. It was in this context that relief in terms of para 12 (C) was prayed for. Obviously in support of claiming the relief of the prayer in terms of para 12(C), the plaintiffs would have to establish their ownership and possession. In order to ascertain the true impact of the relief the whole plaint has to be read. Reading of the entire plaint makes it evident that facts necessary to formulate a complete cause of action have to be stated. A full picture indicative of the genesis of the suit in the present case Page 32 of 56 Downloaded on : Wed Jan 12 01:47:25 IST 2022 C/CRA/169/2020 CAV ORDER would indicate the plaintiffs had claim of an ownership on the basis of a revenue entry 2466 mutated in their favour in 1986 i.e. on 21.09.1986. It was only on 06.07.2004 after 18 years suo motu proceedings were initiated and the revenue entry in their favour was reversed on 20.12.2005. Vanubhai, one of heirs of Jivabhai who had not objected to the Will till date, based on a revenue entry reversed, in his favour, got his and the names of co-heirs entered in 2006 and then sold the land by a registered sale deed to defendant no.5 on 29.05.2007. This came to the plaintiffs knowledge on 05.11.2007. The litigation as to the validity of the mutation entry against the plaintiff only began 15 years after it was entered in his favour. The revenue entry reversed adverse to the plaintiffs, on the date of suit, was pending before SSRD.
5.4 The revenue authorities have till the date of filing of the plaint held that since the plaintiff was a non agriculturist, the transaction was hit by Section 63 of the Tenancy Act. That issue was at large before the revenue authority i.e. S.S.R.D. It is in this context that can the suit be held to be hit by Section 63 of the Tenancy Act coupled with Article 58 of the Limitation Act? The answer is in the negative. Page 33 of 56 Downloaded on : Wed Jan 12 01:47:25 IST 2022
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6. The issue whether the transaction by Jivubhai in favour of the plaintiff is hit by Section 63 of the Tenancy Act, on the date of filing of the suit was pending adjudication before SSRD. The ownership though claimed on the basis of a revenue entry of 1986, what needs to be appreciated is that it stood the same without a challenge from any of the heirs of the original owner. It was only set aside after almost 20 years in 2005 at the behest of revenue authorities. That was also pending a final adjudication at the hands of the plaintiff on the date of the suit. There was no finality on the issue of the sale transaction being hit by Section 63 of the Tenancy Act, on the date of the suit.
6.1 Reading Section 63 of the Act would indicate that the words are no sale shall be "valid" in favour of a person who is not an agriculturist. I find support from the decision in the case of Mavjibhai Dharsibhai vs. State of Gujrat. Relevant paras of which reads as under:
"10 It may be mentioned at this stage that any transaction in contravention of Sec.63 or 64 of the Act is made invalid and not void. This becomes clear from the language of Sec.63 and the provisions contained in Sec.64(8) thereof. Shri D.N.Patel for the contesting respondents has however, urged that there is no much distinction between the terms "invalid" and "void".
11 In support of his submission, he has invited my attention to the Division Bench ruling of the Nagpur Page 34 of 56 Downloaded on : Wed Jan 12 01:47:25 IST 2022 C/CRA/169/2020 CAV ORDER High Court in the case of Mohammad Ibrahim Khan Ikramkhan vs. Sugrabi Abdul & Ors., reported in AIR 1955 Nagpur 272. In the context of the C.P. And Berar Relief of Indebtedness Act, 1939, the Nagpur High Court has held:
"It is contended that there is a difference in the phraseology of sub-sec.(1) and sub-sec(2) of Sec.15. Whereas sub-sec.(2) mentions the word "void the first sub-section uses the words "No transfer shall be valid. There is no real difference between the two. The transaction entered into by a person whose petition for the settlement of debts was pending before a Debt Relief Courts is to be regarded as invalid, that is to say, of no effect in the eye of the law."
12 Ordinarily, I would have accepted the aforesaid submission canvassed by Shri D.N.Patel for the contesting respondents to the effect that there is practically no difference between the two terms "invalid" and "void" in the light of the aforesaid ruling of the Nagpur High Court in the case of Mohammad Ibrahim Khan Ikramkhan (supra). The scheme of the Act, however, makes a clear distinction between void transactions on the one hand and invalid transactions on the other. It is not open to me to say that the Legislature did not understand the distinction between the two terms "void" and "invalid". In fact, as transpiring from from the various provisions of the Act, the Legislature was fully aware of the distinction between the two aforesaid terms. In Sec.17(5) of the Act, it has been provided, "Any sale of a site held in contravention of this section (that is Sec.17 thereof) shall be null and void." As against this, Sec.64(8) has provided "any sale made in contravention of this section (that is Sec.64 thereof) shall be invalid." The language of Sec.63 thereof also makes it clear that the transaction in contravention thereof would be invalid and not void.
13 The material provision, however, occurs in Sec.83A of the Act. It reads:
"(1) No person shall acquire land by transfer where such transfer or acquisition is invalid under any of the provisions of this Act.
(2) Any person who acquires land in
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contravention of sub-sec (1) shall, in the event of
the transfer or acquisition being decided or
declared invalid, be liable to suffer, the
consequences under sec.84 or 84-C as the case
may be."
It becomes clear from the language of the aforesaid statutory provision that any invalid transaction will have to be decided or declared invalid. It would thus mean that an invalid transaction per se may be invalid but it will not be invalid unless it is decided or declared to be so. It has to be invalidated. It thus becomes clear that an invalid transaction is made equivalent to a voidable transaction and not a void transaction. It is a trite principle of law to say that a voidable transaction remains valid till it is avoided, annulled or invalidated.
Even at the cost of repetition, I reiterate that the language of Sec.83A of the Act has likened an invalid transaction to a voidable transaction. 14 In order to annul, avoid or invalidate a voidable transaction, powers for the purpose will have to be exercised within reasonable time. The aforesaid rulings of this Court in the case of Govindbhai Somabhai Nai (supra) and in the case of Koli Nagjibhai Varjan (supra) will not be applicable in the instant case as they were dealing with void transactions and not voidable transactions.
15 In view of my aforesaid discussion, I am of the opinion that powers under Sec.84-C of the Act will have to be exercised within reasonable time. The question then would arise what would be the reasonable time for exercise of such powers and what would be its starting point. As held by the Supreme Court in its ruling in the case of Patel Raghav Natha (supra), what would be the reasonable time would depend upon the facts in each case and the nature of the impugned order in each case."
6.2 Therefore, unless the transaction is declared invalid it stands. Admittedly, upto 2005, there was no embargo or disqualification on the transaction and the same occurred only Page 36 of 56 Downloaded on : Wed Jan 12 01:47:25 IST 2022 C/CRA/169/2020 CAV ORDER in 2005. That challenge was subsisting before the revenue authorities. Also in light of the decision of Rajenbhai Baldevbhai Shah (supra), pressed by Shri Thakore, learned Senior Counsel, it would be relevant to reproduce the operative para of the said decision, which read as under:
"14. The expression 'transfer' was interpreted by the Apex Court in the context of Punjab Security of Land Tenures Act, 1953. Apex Court in State of Punjab (Now Haryana) and others V/s. Amar Singh and another, AIR 1974 SC 994 held the expression 'transfer' is wide enough to cover transfer by operation of law unless expressly excluded. Special exclusions to save transfer by way of inheritance and compulsory land acquisition by State have been made which would have been supererogatory had involuntary transfers automatically gone out of the pale of Section 10-A(b). Apex Court held that the triple objects of the agrarian reform projected by the Act appear to be (a) to impart security to tenure
(b) to make the tiller the owner and (c) to trim large land holdings, setting sober ceiling. The Apex Court held that basic judicial approach must be to discover this soul of the law and strive to harmonize the many limbs to subserve the pervasive spirit and advance the social project of the enactment. The Apex Court in Dayandeo Ganapat Jadhav V/s. Madhav Vitthal Bhaskar and others, 2005 8 SCC 340 while interpreting the provisions of the Bombay Tenancy and Agricultural lands Act, 1948 held that the Act has been enacted with a view to protect the tenants and the provisions of the Act, therefore, must be construed in favour of a weaker class of society to ensure that the object underlying the Act is fulfilled. The Act has been described as a beneficial legislation to protect the tenants as well as the testamentary disposition. We are, therefore, of the considered view that if the agriculturist is permitted to dispose agricultural property through testamentary disposition to a non-agriculturist the same will defeat the very purpose and object of the Tenancy Act which cannot be permitted by a Court of law, therefore, we hold that decision rendered by the Page 37 of 56 Downloaded on : Wed Jan 12 01:47:25 IST 2022 C/CRA/169/2020 CAV ORDER learned Single Judges referred above earlier, otherwise, are not correct enunciation of law and stand over-ruled. We, therefore, hold that Section 63 of the Bombay Tenancy Act also bars the transfer of agricultural land by an agriculturist to a non-agriculturist for non-agricultural purpose unless permission is obtained from the Collector or any authorised officer as provided in that Section.
We are informed by the learned counsel for the petitioner that large number of agricultural lands have already been transferred through testamentary disposition to non agriculturists and are in use and if the settled position is unsettled the same will cause considerable prejudice and inconvenience to the parties. We are of the view that there are matters to be considered by the learned Single Judge depending upon facts of each case and equities can be worked out accordingly, on which, we express no opinion."
6.3 Though subsequent events pending the suit may not be of relevance, they assumed significance in light of the observations recapitulated in bold above. The SSRD has on 25.03.2017 held against the plaintiffs, however, SCA No. 10462 of 2017 at the hands of the plaintiff is pending.
7. In order to justify the declaration to set aside the sale deed dated 29.05.2007, basic foundational facts regarding the legacy of the land transfer are needed to be pleaded. Such pleadings being basic cannot be branded as an attempt of indulging in clever drafting only to create an illusion of a cause of action. The case of Sopan Sukhdev (supra), was a Page 38 of 56 Downloaded on : Wed Jan 12 01:47:25 IST 2022 C/CRA/169/2020 CAV ORDER case where tenancy was claimed by plaintiffs and an ancillary relief was sought to inquire into the affairs of the Trust. The Supreme Court held that for the relief of inquiry into the affairs of the Trust, it was barred by Section 50 of the Bombay Public Trust Act. But as observed by the Supreme Court, some of the reliefs can only be granted by the Civil Court.
8. In the facts of the present case, at the cost of reiteration, nobody had challenged the ownership and possession of the plaintiffs. Until the revenue courts after 19 years started to hold that the transaction was hit by Section 63, the legality of the Will stood and in fact has never been challenged by the legatees. The possession therefore which was otherwise protected till 2007 by virtue of a revenue entry and disturbed by alienating land by the legatee Vanubhai based on reversal of such entry against the plaintiffs entailed a relief of declaration. The relief cannot be so granted by a revenue court but only a civil court. A "statement in the plaint" at one point cannot be harped upon by the applicants of Order VII Rule 11 application to oust the plaintiffs. The plaint has to be read as a whole.
9. Even if the plaint as it is prior to amendment is seen Page 39 of 56 Downloaded on : Wed Jan 12 01:47:25 IST 2022 C/CRA/169/2020 CAV ORDER admittedly the cause of action and the suit was within the period of limitation. The argument therefore of an attempt to oust the plaint on the basis of the amendment where the sale deed of 04.02.2010 was challenged after three years would fail.
8.1 I would here also deal with the submissions of the respective counsels on the question of Article 58 of the Limitation Act and that the suit should be barred as was filed beyond three years from the date of registration which is always, as submitted by applicant, the date of knowledge. The judgement of Becharbhai Zaverbhai (supra), was pressed into service. As held by the Supreme Court in the case of Bahadurbhai (supra), and relying on Section 3 of the Transfer of Property Act, it can be seen that knowledge of a fact is attributed to a person either when he actually knows that fact or when but for wilful abstention from an inquiry or search he ought to have made a gross negligence he would have known it. That the plaintiff in the present case filed the suit in December 2007 after as soon as in November 2007 he had knowledge of a revenue entry showing a sale of 29.05.2007. The Court on 05.12.2007 had granted an injunction. Despite this the defendant no.5 in breach of the Page 40 of 56 Downloaded on : Wed Jan 12 01:47:25 IST 2022 C/CRA/169/2020 CAV ORDER injunction and without recitals in the sale deed of 04.02.2010 of the pending suit, alienated property in favour of defendant no.6 prompting an amendment. When the defendant had played fraud it is not open for him to seek ouster on the plea that is now taken. Based on facts pleaded, the issue of limitation even otherwise is a triable issue and the plaint cannot be rejected at the threshold.
9. It will be fruitful to refer to certain relevant paras of the decisions cited by the counsels for the respective parties. Paras 9 to 16 in the case of Sopan Sukhdeo (supra), read as under:
"9 Before dealing with the factual scenario, the spectrum of Order 7 Rule 11 in the legal ambit needs to be noted.
10 In Saleem Bhai v. State of Maharashtra, it was held with reference to Order 7 Rule 11 of the Code that the relevant facts which need to be looked into for deciding an application thereunder are the averments in the plaint. The trial court can exercise the power at any stage of the suit - before registering the plaint or after issuing summons to the defendant at any time before the conclusion of the trial. For the purposes of deciding an application under clauses (a) and (d) of Order 7 Rule 11 of the Code, the averments in the plaint are germane: the pleas taken by the defendant in the written statement would be wholly irrelevant at that stage.
11 In I.T.C Ltd vs. Debts Recovery Appellate Tribunal it was held that the basic question to be decided while dealing with an application filed under Order 7 Rule 11 of the Code is whether a Page 41 of 56 Downloaded on : Wed Jan 12 01:47:25 IST 2022 C/CRA/169/2020 CAV ORDER real cause of action has been set out in the plaint or something purely illusory has been stated with a view to get out of Order 7 Rule 11 of the Code.
12 The trial court must remember that if on a meaningful and not formal reading of the plaint it is manifestly vexatious and meritless in the sense of not disclosing a clear right to sue, it should exercise the power under Order7 Rule 11 of the Code taking care to see that the ground mentioned therein is fulfilled. If clever drafting has created the illusion of a cause of action, it has to be nipped in the bud at the first hearing by examining the party searchingly under Order 10 of the Code. (See T.Arivandandam v. T.V.Satyapal) 13 It is trite law that not any particular plea has to be considered, and the whole plaint has to be read. As was observed by this Court in Roop Lal Sathi v. Nachhattar Singh Gill only a part of the plaint cannot be rejected and if no cause of action is disclosed, the plaint as a whole must be rejected.
14 In Raptakos Brett & Co. Ltd v. Ganesh Property it was observed that the averments in the plaint as a whole have to be seen to find out whether clause (d) of Rule 11 of Order 7 was applicable.
15 There cannot be any compartmentalisation, dissection, segregation and inversions of the language of various paragraphs in the plaint. If such a course is adopted it would run counter to the cardinal canon of interpretation according to which a pleading has to be read as a whole to ascertain its true import. It is not permissible to cull out a sentence or a passage and to read it out of the context in isolation. Although it is the substance and not merely the form that has to be looked into, the pleading has to be construed as it stands without addition or subtraction or words or change of its apparent grammatical sense. The intention of the party concerned is to be gathered primarily from the tenor and terms of his pleadings taken as a whole. At the same time it should be borne in mind that no pedantic approach should be Page 42 of 56 Downloaded on : Wed Jan 12 01:47:25 IST 2022 C/CRA/169/2020 CAV ORDER adopted to defeat justice on hair-splitting technicalities.
16 Submission of the learned counsel for Respondent 2 Trust was that requirement of law being reading the plaint in its totality, the appellants cannot take the plea that they would give up or relinquish some of the reliefs sought for. That would not be permissible. The plea clearly overlooks the basic distinction between statements of the facts disclosing cause of action and the reliefs sought for. The reliefs claimed do not constitute the cause of action. On the contrary, they constitute the entitlement, if any, on the basis of pleaded facts. As indicated above, Order 6 Rule 2 requires that pleadings shall contain and contain only, a statement in a concise form of the material facts on which the party pleading relies for his claim. If the plea of Mr Savant, learned counsel for the respondent Trust is accepted, the distinction between the statement of material facts and the reliance on them for the claim shall be obliterated. What is required in law is not the piecemeal reading of the plaint but in its entirety. Whether the reliefs would be granted on the pleaded facts and the evidence adduced is totally different from the relief claimed. All the reliefs claimed may not be allowed to a party on the pleadings and the evidence adduced. Whether part of the relief cannot be granted by the civil court is a different matter from saying that because of a combined claim of reliefs, the jurisdiction is ousted or no cause of action is disclosed. Considering the reliefs claimed vis-a-vis the pleadings would not mean compartmentalisation or segregation, in that sense. The plea raised by the respondent Trust is therefore clearly unacceptable."
9.1 Paras 20 and 21 in the case of Ram Prakash Gupta (supra), read as under:
"20 For our purpose, clause (d) is relevant. It makes it clear that if the plaint does not contain necessary averments relating to limitation, the same is liable to be Page 43 of 56 Downloaded on : Wed Jan 12 01:47:25 IST 2022 C/CRA/169/2020 CAV ORDER rejected. For the said purpose, it is the duty of the person who files such an application to satisfy the Court that the plaint does not disclose how the same is in time. In order to answer the said question, it is incumbent on the part of the Court to verify the entire plaint. Order VII Rule 12 mandates where a plaint is rejected, the Court has to record the order to that effect with the reasons for such order. Inasmuch as the learned trial Judge rejected the plaint only on the ground of limitation, it is useful to refer the averments relating to the same. Learned counsel appearing for the appellant, by taking us through the entire plaint, submitted that inasmuch as sufficient materials are available in the plaint, it is proper on the part of the trial Court to decide the suit on merits and not justified in rejecting the plaint that too after the evidence of the plaintiff. In the light of the assertion of the counsel for the appellant, we carefully verified the plaint averments. In paragraph 5, the appellant/plaintiff has specifically stated that he is a handicapped person from the beginning and it is difficult for him to move about freely. The following averments in the plaint are relevant to answer the point determined in this appeal:
"a) That without any intimation to the Plaintiff, said Rajeev Kumar Gupta got decreed the said suit. It seems that the said Rajeev Kumar Gupta in collusion with his father Shri Inder Prakash Gupta produced some-one-else under the pretext of Shri Ram Prakash Gupta, the present Plaintiff in the court and got the said decree in his favour on the said false pretext by playing a fraud upon the Plaintiff as well as upon the court. The Plaintiff never appeared in the above said cases before the High Court nor ever made any statement to the effect that the suit of the Plaintiff may/might be decreed and as such the judgment and decree dated 05.02.1976 passed in the above said suit No. 183/74 entitled as Rajeev Kumar vs. Ram Prakash Gupta is totally false, baseless, nullity and void in the eyes of law and is not at all binding upon the Plaintiff and the same has been procured by fraud and mis-representation as submitted above."
"b) That the Plaintiff came to know for the first time about the passing of the above said decree in favour of said Rajeev Kumar Gupta by the High Page 44 of 56 Downloaded on : Wed Jan 12 01:47:25 IST 2022 C/CRA/169/2020 CAV ORDER Court of Delhi, in the above said suit No. 183/74 in the month of October, 1986. It is submitted that Shri Inder Prakash Gupta, the elder brother of the Plaintiff died at Delhi in the month of September, 1986 and after his death Shri Rajeev Kumar Gupta asked the Plaintiff to give first floor portion of the above building No. 8, Nizamuddin Basti to them and alleged that there was a High Court judgment in their favour. However, no particulars of the said judgment were given at that time by any of the Defendants, and therefore, the Plaintiff could not take any action at that time."
"c) That the said tenant M/s Aseema Architect also stopped payment of rent from the year 1985 and perhaps on the instructions or at the instance of said Indra Prakash Gupta, the elder brother of the Plaintiff, he deposited the rent from July, 1985 to March, 1986 in the court of Rent Controller, Delhi.
However, after the death of Shri Inder Prakash Gupta, the above said tenant refused to pay the rent and ultimately he filed a inter-pleader suit being suit No. 424/89 entitled as Aseema Architect versus Ram Prakash alleging therein that there is a bonafide dispute about the person/s to whom the rent is payable. In fact, the said suit was and is not maintainable because admittedly the said tenant took the above said premises from the Plaintiff and he is stopped from denying the title of the Plaintiff under section 116 of the Indian Evidence Act and for other reasons also."
"d) That in any case, it is submitted that as on one of the dates, the Plaintiff could not appear because of his illness, the learned trial Court proceeded ex-
parte and decreed the suit ex-parte in favour of said Shri Rajeev Kumar Gupta. It is submitted that the full details of the above said judgment were given by the said Rajeev Kumar in the said court as the copy of the said judgment of the High Court was filed therein and thereafter taking the details from the same, the High Court's file was inspected and the malafide motives and designs of the Defendants came to light and, therefore, the present suit is being filed at the earliest possible challenging the said judgment and the decree of the High Court of Delhi."
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21) As observed earlier, before passing an order in an application filed for rejection of the plaint under Order VII Rule 11(d), it is but proper to verify the entire plaint averments. The abovementioned materials clearly show that the decree passed in Suit No. 183 of 1974 came to the knowledge of the plaintiff in the year 1986, when Suit No.424 of 1989 titled Assema Architect vs. Ram Prakash was filed in which a copy of the earlier decree was placed on record and thereafter he took steps at the earliest and filed the suit for declaration and in alternative for possession. It is not in dispute that as per Article 59 of the Limitation Act, 1963, a suit ought to have been filed within a period of three years from the date of the knowledge. The knowledge mentioned in the plaint cannot be termed as inadequate and incomplete as observed by the High Court. While deciding the application under Order VII Rule 11, few lines or passage should not be read in isolation and the pleadings have to be read as a whole to ascertain its true import. We are of the view that both the trial Court as well as the High Court failed to advert to the relevant averments as stated in the plaint."
5.15 Paras 16 to 21in the case of Chhotanben (supra), read as under:
"16. The High Court on the other hand, has considered the matter on the basis of conjectures and surmises and not even bothered to analyse the averments in the plaint, although it has passed a speaking order running into 19 paragraphs. It has attempted to answer the issue in one paragraph which has been reproduced hitherto (in paragraph 7). The approach of the Trial Court, on the other hand, was consistent with the settled legal position expounded in Saleem Bhai and Others 16 Vs. State of Maharashtra and Others1, Mayar (H.K.) Ltd. and Others Vs. Owners & Parties, Vessel M.V. Fortune Express and Others2 and also T. Arivandandam Vs. T.V. Satyapal and Another3.
17. These decisions have been noted in the case of Church of Christ Charitable Trust and Educational Charitable Society Vs. Ponniamman Educational Trust,4 where this Court, in paragraph 11, observed thus:
"11. This position was explained by this Court in Page 46 of 56 Downloaded on : Wed Jan 12 01:47:25 IST 2022 C/CRA/169/2020 CAV ORDER Saleem Bhai v. State of Maharashtra, in which, while considering Order 7 Rule 11 of the Code, it was held as under: (SCC p.560, para 9) "9. A perusal of Order 7 Rule 11 CPC makes it clear that the relevant facts which need to be looked into for deciding an application thereunder are the averments in the plaint. The trial court can exercise the power under Order 7 Rule 11 CPC at any stage of the suit--before registering the plaint or after issuing summons to the defendant at any time before the conclusion of the trial. For the purposes of deciding an application under clauses (a) and (d) of Rule 11 of Order 7 CPC, the averments in the plaint are germane; the pleas taken by the defendant in the written statement would be wholly irrelevant at that stage, therefore, a direction to file the written statement without deciding the application under Order 7 Rule 11 CPC cannot but be procedural irregularity touching the exercise of jurisdiction by the trial court." It is clear that in order to consider Order 7 Rule 11, the court has to look into the averments in the plaint and the same can be exercised by the trial court at any stage of the suit. It is also clear that the averments in the written statement are immaterial and it is the duty of the Court to scrutinise the averments/pleas in the plaint. In other words, what needs to be looked into in deciding such an application are the averments in the plaint. At that stage, the pleas taken by the defendant in the written statement are wholly irrelevant and the matter is to be decided only on the plaint averments. These principles have been reiterated in Raptakos Brett & Co. Ltd. v. Ganesh Property and Mayar (H.K.) Ltd. v. Vessel M.V. Fortune Express."
18. The High Court has adverted to the case of Church of Christ Charitable Trust and Educational Charitable Society (supra), which had occasion to consider the correctness of the view taken by the High Court in ordering rejection of the plaint in part, against one defendant, on the ground that it did not disclose any cause of action qua that defendant. The High Court has also noted the decision relied upon by the contesting respondents in the case of Mayur (H.K.) Ltd. and Ors. Page 47 of 56 Downloaded on : Wed Jan 12 01:47:25 IST 2022
C/CRA/169/2020 CAV ORDER (supra), which has restated the settled legal position about the scope of power of the Court to reject the plaint under Order VII Rule 11(d) of CPC.
19. In the present case, we find that the appellants (plaintiffs) have asserted that the suit was filed immediately after getting knowledge about the fraudulent sale deed executed by original defendant Nos.1 & 2 by keeping them in the dark about such execution and within two days from the refusal by the original defendant Nos.1 & 2 to refrain from obstructing the peaceful enjoyment of use and possession of the ancestral property of the appellants. We affirm the view taken by the Trial Court that the issue regarding the suit being barred by limitation in the facts of the present case, is a triable issue and for which reason the plaint cannot be rejected at the threshold in exercise of the power under Order VII Rule 11(d).
20 In the above conspectus, we have no hesitation in reversing the view taken by the High Court and restoring the order of the Trial Court rejecting the application (Exh.21) filed by respondent No.1 (defendant No.5) under Order VII Rule 11(d). Consequently, the plaint will get restored to its original number on the file of the IVth Additional Civil Judge, Anand, for being proceeded further in accordance with law. We may additionally clarify that the Trial Court shall give effect to the order passed below Exh.17 dated 20th January, 2016, reproduced in paragraph 5 above, and take it to its logical end, if the same has remained unchallenged at the instance of any one of the defendants. Subject to that, the said order must be taken to its logical end in accordance with law.
21. Accordingly, this appeal succeeds and is allowed in the above terms, with no order as to costs." 5.16 Paras 8 to 10, 13 and 20-23 in the case of Bahadurbhai Laljibhai (supra), read as under:
"8. The averments emerging from the plaint which would be of prime consideration while deciding the application for rejection of plaint under Order VII Rule 11 of the Code of Civil Procedure are that Joitaram Ranchhoddas, predecessor in title of the plaintiffs, had Page 48 of 56 Downloaded on : Wed Jan 12 01:47:25 IST 2022 C/CRA/169/2020 CAV ORDER purchased the suit land by a registered sale deed dated 3.2.1981 from erstwhile owner Ramanlal Jamnadas Shah. With this aspect of the matter, even the defendants have not raised any dispute. As per the plaintiffs such sale deed has never been set aside or challenged. Nothing contrary has been avered or pointed out by the defendants. In that view of the matter, the question of validity of subsequent sale of the same land by heirs of Ramanlal Jamnadas Shah, the land owners, would be a relevant question. It may be that the revenue entries certifying the sale in favour of the plaintiffs dated 3.2.1981 was cancelled. It prima facie appears that same was since the purchasers could not produce certificate of being agriculturists. Whether they were not agriculturists at all or whether they were agriculturists but having agricultural land outside of radius of 8 km from the suit land is not clear from the record at least at this stage. Both these aspects may have slightly different repercussions. As per section 63 of the Bombay Tenancy and Agricultural Lands Act, any sale of agricultural land in favour of a person who is not an agriculturist would be invalid. In terms of the definition of agriculturist then prevailing, even if a person held agricultural land, but such land was situated outside the radius of 8 km from the land purchased by him, qua such land he would be considered as non agriculturist. However, such requirement of holding agricultural land within a radius of 8 km was done away with by amendment in the said Act brought in the year 1999 and which would apply to all pending proceedings also. However, at this stage, it is not necessary for me to dwell into these aspects of the matter. What is of importance is in face of such sale deed, a subsequent sale deed was effected by the heirs of erstwhile owners of the suit land. Prayer of the plaintiffs therefore, for a declaration that they were the owners by virtue of sale deed dated 3.2.1981 and continued to be so, cannot be stated to be barred by limitation. Obviously, the period of limitation cannot be computed from the date of the sale deed. The requirement of filing the suit for such declaration would only arise in case of need when cause of action can be stated to have arisen. In other words, only when such title is questioned or challenged the cause of action for filing such a suit for declaration would arise. As per the plaintiffs they had been in possession of the suit land and only shortly before filing Page 49 of 56 Downloaded on : Wed Jan 12 01:47:25 IST 2022 C/CRA/169/2020 CAV ORDER the suit they were obstructed from its use and enjoyment. Going by such averments, the first prayer obviously cannot be stated to be barred by limitation.
9. Question that requires more elaborate answer is of limitation with respect to the plaintiffs' second prayer for declaration that sale deed dated 2.5.2003 in favour of defendant no.2 is invalid and void. As noted, Shri Gandhi vehemently contended that any suit for declaration that the sale deed dated 2.5.2003 is invalid must be brought within a period of three years thereof since a registered document would put the plaintiffs to deemed notice thereof. He relied on Article no.59 to the schedule to the Limitation Act which pertains to a suit to cancel or set aside an instrument or decree or for the recession of a contract. Period of limitation prescribed is three years and time when the period would begin to run is stated to be "When the facts entitling the plaintiff to have the instrument or decree cancelled or set aside or the contract rescinded first become known to him."
10. According to the plaintiffs, they were not aware about the subsequent sale executed on 2.5.2003. Only shortly before filing of the suit, they were prevented from use and enjoyment of the property upon which they inquired and learned about the execution of the sale. For the purpose of deciding the defendants' application under Order VII Rule 11, I would have to proceed on such basis, particularly, in absence of any clinching and irrefutable indication to the contrary presented before me or before the Court below by the defendants. If these averments are therefore, at this stage to be accepted, the suit which was filed within a short period of such knowledge, would not ordinarily be hit by limitation. However, it is in this context that Mr. Gandhi's contention regarding deemed notice assumes significance. The question therefore, is can the suit be declared as barred by limitation on the concept of deemed knowledge in view of the fact that sale deed was a registered one?
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13. Upon perusal of the said portion of section 3 of the Transfer of Property Act, it can be seen that knowledge of a fact is attributed to a person either when he actually knows that fact, or when, but for wilful abstention from Page 50 of 56 Downloaded on : Wed Jan 12 01:47:25 IST 2022 C/CRA/169/2020 CAV ORDER an inquiry or search, he ought to have made, or gross negligence, he would have known it. Explanation to the said clause interalia provides that where any transaction relating to immoveable property is required by law to be and has been effected by a registered instrument, any person acquiring such property or any part thereof, or share or interest in, such property shall be deemed to have notice of such instrument as from the date of registration. This is subject to the conditions provided in provisions contained to the said explanation. Explanation1 thus refers to deemed notice and relates to the notice of instrument relating to a transaction of immovable property which is required by law and has also been so registered and such deemed knowledge is imputed to the person acquiring such property or any share or interest in such property. Such provision therefore, cannot be applied in case of a subsequent sale of an immovable property to impute deemed knowledge of such transaction on the erstwhile purchaser/owner merely on the strength of section 3 of the Transfer of Property Act unless facts and attendant circumstances suggest that the person in question was reasonably expected to make search or inquiry which he failed to do, thus suggesting willful act, negligence or lack of due diligence i.e. prudence, expected of a reasonable man. Any such interpretation being quite contrary to the language used in the provision, would also put an unreasonable onus on a owner or a purchaser of an immovable property to be constantly vigilant and apprise himself of any subsequent registered transaction with respect to such immovable property or face unpleasant consequences of his challenge to a totally invalid or even a fraudulent or a bogus sale deed being barred by law of limitation after the statutory period commencing from the date of registration on the principle of deemed knowledge. In plain terms said provision of section 3 of the Transfer of Property Act applies in case of a person acquiring an immovable property or a share or interest therein of a transaction which would be an existing and not a future transaction which by law is required and indeed been registered.
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20. It can thus be seen that consistently the provision of section 3 of the Transfer of Property Act in context of Page 51 of 56 Downloaded on : Wed Jan 12 01:47:25 IST 2022 C/CRA/169/2020 CAV ORDER deemed notice is applied in case of subsequent purchaser acquiring any immovable property or interest therein of the rights of the existing owner. Analogy flowing from this provision is applied in case of rights and interests subsequently created when the facts and attendant circumstances indicating either negligence, lack of due diligence or willful lack of inquiry or the like.
21. In case of Becharbhai Zaverbhai Patel v. Jashbhai Shivabhai Patel(supra) relied upon by Shri Gandhi, the Learned Single Judge did not rely solely on the factor of deemed notice of a registered document. Several other factors were relied upon such as the suit was filed in the year 2010 challenging the registered sale deed dated 25.8.1975. Thus the suit was filed 35 years after the date of sale and significantly mutation entries were also made in the revenue records on the basis of such registered sale deed immediately after the sale. It was in this background that Learned Single Judge basing reliance on decision of Supreme Court in case of Dilboo (SMT) (Dead) by Lrs. and others(supra), attributed knowledge to the plaintiffs of the registered sale deed which they had challenged after 35 years.
22. In case of Dilboo (SMT) (Dead) by Lrs. and others(supra) also relied by Shri Gandhi, the facts were that the plaintiffs had filed the suit for redemption of a mortgage created by persons whom they claimed to be their predecessors. In the meantime, suit property was sold once again. Without challenging such sale deed, the suit for redemption of mortgage was filed. It was in this background the Supreme Court held that suit was barred by limitation. Following observations made in the process need to be noted :
"Thus a Suit for redemption of mortgage could be filed within 60 years. But if the mortgagee had created an interest in excess of the right enjoyed by him then to recover possession against the third party the Suit had to be filed within 12 years of the transfer becoming known to the plaintiff. The rational in cutting down the period of 60 years to 12 years is clear. The 60 years period is granted as a mortgagee always remains a mortgagee and thus the rights remain the same. However when an interest in excess of the interest of the mortgagee is created then the third party is not claiming under the mortgagee. The position of such a person could not be worse than that of a rank trespasser who was in open and hostile possession. As the title of the Page 52 of 56 Downloaded on : Wed Jan 12 01:47:25 IST 2022 C/CRA/169/2020 CAV ORDER rank trespasser would get perfected by adverse possession on expiry of 12 years so also the title of such transferee would get perfected after 12 years. The period of 12 years has to run from the date of knowledge by the plaintiff of such transfer. It is always for the party who files the Suit to show that the Suit is within time. Thus in cases where the suit is filed beyond the period of 12 years, the plaintiff would have to aver and then prove that the Suit is within 12 years of his/her knowledge. In the absence of any averment or proof, to show that the suit is within time, it is the plaintiff who would fall. Whenever a document is registered the date of registration becomes the date of deemed knowledge. In other cases where a fact could be discovered by due diligence then deemed knowledge would be attributed to the plaintiff because a party cannot be allowed to extend period of limitation by merely claiming that he had no knowledge."
23. It is true that in the said case, the Supreme Court did apply the principle of deemed knowledge on a plaintiff who claimed to be having preexisting right when the suit land was subsequently sold. However, such observations cannot be read in isolation and cannot be seen as the Court laying down a ratio that in case of every registered instrument of transfer of immovable property, the world at large would be deemed to have notice of such transaction and period of limitation to question legality thereof would commence from the date of registration of the instrument. In fact the Supreme Court adopted the analogy and applied the principles flowing from section 3 of the Transfer of Property Act in facts of the case where the plaintiffs could and ought to have discovered with due diligence regarding the subsequent sale transaction. It was in this context the Supreme Court held that in absence of any averment or proof to show that the suit is within time, the plaintiff would fail. It was further observed that when a document is registered the date of registration becomes the date of deemed knowledge and in other cases where a fact could be discovered by due diligence then deemed knowledge would be attributed to the plaintiff because a party cannot be allowed to extend period of limitation by merely claiming that he had no knowledge. Thus even in case of a registered document, to any situations which are not covered under section 3 of the Transfer of Property Act, it is always open for the plaintiff to point Page 53 of 56 Downloaded on : Wed Jan 12 01:47:25 IST 2022 C/CRA/169/2020 CAV ORDER out as to the manner and source of knowledge of the transaction and to establish that such fact could not have been discovered by due diligence and that therefore, the plaintiff cannot be attributed deemed knowledge of the offending transaction."
10. The decision cited by Shri Thakore, learned Senior Counsel, in the case of Ganpatlal Manjibhai Khatri (supra), was in context of an agreement to sell contrary to law where it was held that there cannot be a contract contrary to law. Here admittedly the Will is not declared invalid especially in light of the fact that the same has not been challenged by legatees and as discussed above a transaction may be invalid if Sec.63 is breached but when declaration is sought in conjunction with the relief of setting aside a sale deed post the transaction, the judgment would not apply in the facts of the case.
11. There can be no dispute to the proposition that powers under Order VII Rule 11 can be exercised at any stage but it all depends on the facts of the case. In the case on hand, the suit was filed on 05.12.2007. An injunction operated from such date. The order of injunction was never challenged. In fact in breach of the injunction order since a subsequent sale took place the plaint had to be amended. The amendment was made to challenge the subsequent sale. The amendment was granted. The order of amending the plaint in 2017 was not Page 54 of 56 Downloaded on : Wed Jan 12 01:47:25 IST 2022 C/CRA/169/2020 CAV ORDER challenged albeit the same was passed pending hearing of the Order VII Rule 11 application. Despite a status quo order the conduct of the applicant showed that he applied for N.A permission which was granted. The act of sale therefore on 04.02.2010, as pointed out by Shri Desai, learned Senior Counsel, was a deliberate cut particularly when the sale deed mentioned nothing. On 11.09.2013, amendment application was filed by respondents no. 6 and 7 challenging the sale deed dated 04.02.2010 and the said amendment application Exhibit 118 came to be allowed on date 13.10.2017 [Pages 103 to 103-J], the plaint was accordingly amended, amending prayers [Page 109 to 111]. The amendment is never subjected to challenge by the petitioner or by any other party to the proceedings and has attained finality. On date 11.09.2013, vide Exhibit 116, application Order 39 Rule 2-A prayer for contempt proceedings was filed by the respondents no. 6 and 7 and the same is pending. On date 25.07.2017, after 10 years of the institution of the suit Exhibit 149 Order 7 Rule 11 application is filed [Pages 114 to 120] and the same is replied to by the respondent no. 6 to 7. [Pages 122 to 125.] In the above mentioned facts and circumstances of the case, apart from the fact that, legally the application under Order 7 Rule 11 is not maintainable and is therefore, rightly rejected, in Page 55 of 56 Downloaded on : Wed Jan 12 01:47:25 IST 2022 C/CRA/169/2020 CAV ORDER view of the decision reported in 2007 (10) SCC 59, para 9, the application was hopelessly time barred and is hit by delay, laches and acquiescence.
12. For the aforesaid reasons, the judgment and order dated 05.03.2020 below Application Exh.149 in Special Civil Suit no. 17 of 2018 is confirmed. Civil Revision Application is dismissed with no costs.
(BIREN VAISHNAV, J) Bimal Page 56 of 56 Downloaded on : Wed Jan 12 01:47:25 IST 2022