Gujarat High Court
Thakore Lavgaben Wd/O Late Jorabhai ... vs Thakore Savsibhai Dhamabhai Alias ... on 5 June, 2023
C/CRA/17/2023 ORDER DATED: 05/06/2023
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CIVIL REVISION APPLICATION NO. 17 of 2023
==========================================================
THAKORE LAVGABEN WD/O LATE JORABHAI MEHABHAI
Versus
THAKORE SAVSIBHAI DHAMABHAI ALIAS DHARAMSHIBHAI
==========================================================
Appearance:
MR J G VAGHELA(3971) for the Applicant(s) No. 1,2,3,4
MS. PAYAL M TUVAR(7055) for the Opponent(s) No. 1
==========================================================
CORAM:HONOURABLE MR. JUSTICE NIRAL R. MEHTA
Date : 05/06/2023
ORAL ORDER
1. By way of this Civil Revision Application under Section 115 of the Code of Civil Procedure, 1908 (for short 'the Code'), the petitioners herein - original defendant Nos.1 to 4 have called in question the order dated 29.12.2022 passed by learned Principal Senior Civil Judge, Deodar, District - Banaskantha below Exh.10 in Regular Civil Suit No.31 of 2022, by which the trial court has rejected the application Exh.10 filed by the original defendant Nos.1 to 4 seeking, inter-alia, rejection of the plaint under the provisions of Order 7 Rule 11 of the Code.
2. The facts giving rise to this Civil Revision Application, in nutshell, are as under :
2.1 The respondent herein - original plaintiff has instituted the Regular Civil Suit No.31 of 2022 against the petitioners Page 1 of 17 Downloaded on : Thu Jun 08 20:35:30 IST 2023 C/CRA/17/2023 ORDER DATED: 05/06/2023 herein in the court of learned Principal Senior Civil Judge, Deodar, District - Banaskantha, with the following reliefs :
"(a) Agricultural land - farm namely Ravelni Vaat Padar bearing Block No.35 having Old Block No.92 paiki 1 paiki 2, area admeasuring Hector-00, Are-70, Sq.
Mts.-29 of Moje: Kotda (D), Taluka: Diyodar, District:
Banaskantha was handed over by Jorabhai Mehabhai, deceased forefather of the defendant no.1 to 3 on 23/11/1991 for consideration of Rs.17,000/- (Seventeen Thousand) by Mortgage in Possession and thereafter, the defendants no.1 to 3 executed Deed of Mortgage in possession in our favour on 19/09/1995 taking amount of Rs.80,000/- towards consideration and handed over the possession of the land to the plaintiff by way of conditional sale and therefore, complying with the condition, as the plaintiff had paid Rs.47910/- (Forty Seven Thousand Nine Hundred Ten) against the mid term loan with interest stood in the name of Jorabhai Mehabhai, deceased forefather of the defendant no.1 to 3, amount of Rs.17,000/- of mortgage paid earlier and consideration of Rs.80,000/- paid on 19/09/1995, making total payment of consideration of Rs.1,44,910/-, kindly hold and declare that the plaintiff is the lawful owner and occupier of the suit land by way of purchase rights and that the defendant no.1 to 3 are bound to execute Registered Sale Deed of the suit land in favour of the plaintiff and that the defendants have no right to execute Registered Sale Deed on the basis of the revenue records other than to the plaintiff and that the plaintiff has lawful possession of the suit land by way of purchase rights and therefore, the defendant no.4 is not entitled to take possesssion under the Registered Sale Deed without following due process of law.
(b) Though the possession of the agricultural land - farm namely Ravelni Vaat Padar bearing Block No.35 having Old Block No.92 paiki 1 paiki 2, area admeasuring Hector-00, Are-70, Sq. Mts.-29 of Moje:
Kotda (D), Taluka: Diyodar, District: Banaskantha was handed over by the defendant no.1 to 3 on 19/09/1995 to the plaintiff by way of conditional sale and the plaintiff has complied with the conditions of Page 2 of 17 Downloaded on : Thu Jun 08 20:35:30 IST 2023 C/CRA/17/2023 ORDER DATED: 05/06/2023 the sale, taking disadvantage of the pending execution of sale deed in favour of the plaintiff and though the defendant no.4 is aware about the entire facts, the defendants, in collusion with each other, have executed Registered Sale Deed no.1143/2022 dated 08/07/2022 of the suit land illegally. Kindly hold and declare that the said sale deed has been executed without any legal rights and that the said sale deed is null and void and that the defendant no.4 does not get any right, title or interest on the basis of the said sale deed.
(c) Kindly pass an order against the defendants that defendant no.1 to 3 or their heirs, guardians, successors, assignees or transferees execute Registered Sale Deed for the agricultural land - farm namely Ravelni Vaat Padar bearing Block No.35 having Old Block No.92 paiki 1 paiki 2, area admeasuring Hector-00, Are-70, Sq. Mts.-29 of Moje:
Kotda (D), Taluka: Diyodar, District: Banaskantha in favour of the plaintiff and put their signatures as required in the proceedings / statements to get the name of the plaintiff entered in the revenue records.
(d) Kindly pass permanent injunction order against the defendants that the defendants or their heirs, guardians, successors, assignees or transferees shall not obstruct or create any hurdle or objection in legal possession of the plaintiff to the agricultural land -
farm namely Ravelni Vaat Padar bearing Block No.35 having Old Block No.92 paiki 1 paiki 2, area admeasuring Hector-00, Are-70, Sq. Mts.-29 of Moje:
Kotda (D), Taluka: Diyodar, District: Banaskantha or they shall not prevent the plaintiff from cultivating, yielding or moving through the suit land.
(e) Kindly pass any other and further relief as the Hon'ble Court may deem fit considering the nature of the suit.
(f) Kindly grant the entire cost of the suit from the defendants."
2.2 Upon service of notice, the petitioners herein appeared and preferred an application under the provisions of Order 7 Page 3 of 17 Downloaded on : Thu Jun 08 20:35:30 IST 2023 C/CRA/17/2023 ORDER DATED: 05/06/2023 Rule 11 of the Code praying, inter-alia, rejection of the suit mainly on the ground of limitation.
2.3 The trial court, after having heard the parties and having considered the relevant material, vide its order dated 29.12.2022, rejected the said application.
2.4 Being aggrieved and dissatisfied by the aforesaid, the petitioners herein - original defendant Nos.1 to 4 have approached this Court by way of this Civil Revision Application under Section 115 of the Code with the appropriate prayers stated therein.
3. I have heard learned advocate Mr.J.G.Vaghela for the petitioners and learned advocate Ms.Payal Tuvar for the respondent. I have also gone through the material produced on record in detail and have also gone through the impugned order dated 29.12.2022 passed by the trial court.
4. Learned advocate Mr.J.G.Vaghela for the petitioners vehemently submitted that in the facts and circumstances of the case, the trial court has erred in rejecting the application under Order 7 Rule 11 of the Code as bare reading of the plaint itself goes to suggest that the suit is barred by limitation. Learned counsel further submitted that for the purpose of filing the suit for specific performance of contract as per Article 54 of the schedule to the Limitation Act, the period of limitation is prescribed as 3 years. Mr.Vaghela then submitted that for the purpose of instituting a suit for declaration as per Article 58 of the Limitation Act, the Page 4 of 17 Downloaded on : Thu Jun 08 20:35:30 IST 2023 C/CRA/17/2023 ORDER DATED: 05/06/2023 limitation is also prescribed for 3 years. According to learned advocate for the petitioners, thus, the suit is thereby clearly barred by law of Limitation Act. To substantiate his contention, Mr.Vaghela submitted that the sale deed was to be executed immediately after the payment of loan and, therefore, when the last installment of loan was paid on 30.6.1998, the suit should have been instituted within 3 years therefrom. Thus, the right to sue accrued in the year 1998 and the suit is admittedly filed in the year 2022 and thereby, the same is hit by the provision of the Limitation Act.
4.1 Learned advocate for the petitioners further submitted that even otherwise, the suit is not maintainable being filed on the basis of unregistered document on a non-judicial stamp paper and thereby, in view of the provision of the Registration Act, said document is not a valid document and thereby, cannot be considered by the trial court. To substantiate the said contention, learned advocate for the petitioner heavily relied upon the judgment of the Apex Court in case of Balram Singh v. Kelo Devi rendered in Civil Appeal No.6733 of 2022, decided on 23.9.2022.
4.2 By making above submissions, learned advocate for the petitioners urged this Court to allow the Civil Revision Application.
5. Per contra, learned advocate Ms.Payal Tuvar for the respondent vehemently opposed the present Civil Revision Application contending, inter-alia, that the order passed by the trial court is perfectly justified and does not require any Page 5 of 17 Downloaded on : Thu Jun 08 20:35:30 IST 2023 C/CRA/17/2023 ORDER DATED: 05/06/2023 interference by this Court.
5.1 Learned advocate for the respondent submitted that while deciding the application under Order 7 Rule 11 of the Code, only and only the plaint has to be seen. According to Ms.Tuvar, if the entire plaint along with prayers is conjointly read over, it would appear that the suit is also for the purpose of cancellation of the sale deed along with declaration and injunction. Ms.Tuvar further submitted that what has been prayed in the suit is declaration to the effect that the possession of the original plaintiff based on the document dated 23.11.1991 is valid and also seek further declaration to the effect that the respondents therein are obliged to execute the registered sale deed. Learned advocate further submitted that another relief which was prayed for is with regard to cancellation of the sale deed executed in favour of original defendant No.4 dated 8.7.2022. Learned advocate, thus, submitted that the sale deed which is sought to be cancelled is dated 8.7.2022 and the suit is filed on 29.9.2022 and thereby, it is well within limitation because the limitation challenging the sale deed is prescribed as 3 years. Learned advocate further submitted that as such in the plaint, various reliefs are claimed and thereby, different Articles would be applicable for the different prayers and thus, assuming without admitting that the claim of the plaintiff for the purpose of performance is time barred, in that eventuality also the suit cannot be dismissed in parts.
5.2 By making above submissions, learned advocate for the respondent, urged this Court to dismiss the Civil Revision Page 6 of 17 Downloaded on : Thu Jun 08 20:35:30 IST 2023 C/CRA/17/2023 ORDER DATED: 05/06/2023 Application.
6. I have heard the learned advocates appearing for the respective parties in detail and have gone through the material produced on record as well as the impugned order passed by the trial court. No other and further submissions have been canvassed by learned advocates appearing for the respective parties, except what are stated herein-above.
7. Having considered the submissions of the learned advocates appearing for the respective parties, a short question that falls for consideration of this Court is whether the trial court has committed any error in dismissing the application under Order 7 Rule 11 of the Code ?
8. So as to decide the aforesaid question, the facts as narrated in the plaint are hereby reproduced by way of true translation.
"4. Since the deceased Koli Jorambhai Mehabhai, who is husband of defendant no.1 and father of defendant no.2 and 3, was in need of money in the year 1991, the land bearing block no.92 admeasuring Acre 4 39 Guntha paiki 5 (five) Bigha land of farm, namely Ravel Ni Vaat Padarwali, was mortgaged with possession to the plaintiff upon receiving the consideration of Rs.17000/- (seventeen thousand only) on 23/11/1991. At that time, the possession of the aforesaid land was handed over to the plaintiff. The tenure of the aforesaid mortgage was of 4 (four) years. Upon completion of the tenure of mortgage, the amount of mortgage was demanded from defendant no.1 to 3. To which, they replied that they do not have the money. defendant no. 1 to 3 informed that they do not have money at present. Moreover, shares of the heirs of Devshi Jivraj namely Gana Devsi and others are also Page 7 of 17 Downloaded on : Thu Jun 08 20:35:30 IST 2023 C/CRA/17/2023 ORDER DATED: 05/06/2023 there in the aforesaid land. 3 (three) Bigha land is in our share, so you purchase it. We, the plaintiff agreed to purchase the 3 (three) Bigha land, which was the share of defendant no.1 to 3 and asked them to decide the selling price of the aforesaid land. defendant no.1 to 3 replied that "you have given the amount of Rs.17000 for the mortgage with possession. In addition to the said amount, pay the amount of Rs.80,000/- (eighty thousand only). Moreover, we have availed the loan of medium tenure from the Kotda Vividh Karyakari Sahkari Mandali limited. The due amount of the aforesaid loan has to be paid by you. After the aforesaid loan is repaid, we will execute sale deed in your favor. At present, we shall execute the deed of mortgage with possession and we shall mention the condition in the said deed for selling the farm Nandava after the repayment of loan. Thus, defendant no. 1 to 3 informed us to sell their land on condition of repaying the loan. Upon receiving their assurance, we decided to purchase the farm. We, the plaintiff paid the amount of Rs.80,000/- to the defendant no.1 to 3. Therefore, defendant no.1 to 3 executed the deed of mortgage with possession for the land known as Ravel ni Vaat Padar, admeasuring 3 (three) Bigha in favor of the plaintiff, in presence of witnesses and handed over the possession occupation of the aforesaid land with the condition of executing registered sale deed after repayment of the loan of medium tenure, availed in the name of Jorabhai Mehabhai at the Kotda Vividh Karyakari Sahkari Mandali limited. From that day, till today, we, the plaintiff have been engaged in agriculture as owner of the said land and house is also constructed for the residence of the son of the plaintiff, wherein he resides with his family.
5. Thereafter, in compliance of the condition of sale, the Plaintiff had repaid the short term loan with interest which was due in the name of Jorabhai Mehabhai, by depositing the amount to 'The Kotada (Di.) Vividh Karyakari Sahkari Mandali Ltd.' respectively of Rs.20,000/- (In words Rs.Twenty Thousand only) on 13/05/1995, Rs.10,000/- (In words Rs.Ten Thousand only) on 24/04/1996, Rs.10,000/- (In words Rs.Ten Thousand only) on 14/05/1997, Rs.7,910/- (In words Rs.Seven Thousand Nine Hundred Ten Only) on 30/06/1998, thus in total of Rs.47,910/- (Rs.Forty Page 8 of 17 Downloaded on : Thu Jun 08 20:35:30 IST 2023 C/CRA/17/2023 ORDER DATED: 05/06/2023 Seven Thousand Nine Hundred Ten Only)." Thus, I had paid the amount of consideration to the Defendants Nos.1 to 3 respectively at Rs.17,000/- in the year 1991, Rs.80,000/- in the year 1995 and through repayment of loan with the interest to the tune of Rs.47,910/-, thus in total of Rs.1,44,910/-
(Rs.One Lakh Forty Four Thousand Nine Hundred Ten Only) and had accordingly purchased the suit land. After repayment of due loan amount, as I informed the Defendants Nos.1 to 3 to execute the Registered Sale-deed, they replied that "Presently, suit land is maintained in the joint names of us and Ganabhai Devasibhai, to whom we are not in good terms. Thus, the permission for the fragmentation of the block cannot be granted without his consent. Already you have possession of the suit land and you should trust us. Upon getting permission for the block distribution, we will execute the Sale-deed." Therefore, as I was having possession of suit land, upon keeping trust on the Defendants Nos.1 to 3, I decided to wait till the permission for block distribution is given.
6. Thereafter, as Ganabhai Devasibhai and others were in need of money, they got permission for block distribution in the year 2007 and sold out the land bearing Block No.92 paiki (Except that sold to me) admeasuring He.Are.Sq.Mt. 0-70-82 to Patel Devrajbhai Gagdasbhai, Re.Kotada (Di) in consideration amount of Rs.60,000/- (In words Rs.Sixty Thousand only) on 14/06/2007. On coming to know about the same, as I informed the Defendants Nos.1 to 3 to execute the registered Sale-deed regarding the land sold to me, they replied upon giving me confidence that "You should wait for some time, we are not going to escape, we will execute the Sale-deed." Thus, I trusted on them. Thereafter, regarding the land bearing Block No.92 paiki (Except that sold to me), which came to be assigned to the heirs of Devasi Jivraj admeasuring He.Are.Sq.Mt. 0- 53-17, with new Block No.34; The said land was sold to Patel Dhudabhai Dharamshibhai. As I came to know in this regard, I asked Defendant Nos.1 to 3 to get executed sale deed thereof, but they started showing excuses and thereafter, without my knowledge, Defendant Nos.1 to 3 availed crop loan of Rs.40,000/- from Dena Bank, Diyodar Branch on the Page 9 of 17 Downloaded on : Thu Jun 08 20:35:30 IST 2023 C/CRA/17/2023 ORDER DATED: 05/06/2023 land sold to me in the year 2014 and I came to know about the said loan after period of six months thereof. Thus, upon scolding Defendant Nos.1 to 3 for making encumbrance on the land in question by availing loan thereon without executing sale deed thereof, they replied that, "As we required money, we have availed loan and when it is convenient, we shall repay the loan and execute sale deed of the land in question." As they stated so, I asked Defendant Nos.1 to 3 that, "As decided, I have paid the amount of consideration. Then, why have you raised encumbrance on this land? You immediately repay the loan and execute sale deed in my favor." Thus, Defendant Nos.1 to 3 gathered family members of me, the plaintiff and stated that they have availed loan due to financial crunch. They further requested to grant them sometime and when it is convenient, they shall repay the loan and execute sale deed of the land in question. As Defendant Nos.1 to 3 and I are family members, our family members persuaded us to have some mercy. Thus, keeping in mind financial crunch of Defendant Nos.1 to 3 and their promise to make repayment of loan and get executed sale deed of the land in question, I agreed to grant them time to make repayment of the loan.
7. Thereafter, despite making frequent request to Defendant Nos.1 to 3 to make repayment of crop loan to remove encumbrance on the land in question and get executed sale deed thereof, they did not make repayment of the loan amount. As Land of Block No.92 paiki sold to me, the plaintiff and the land of my occupancy was resurveyed, it was given New Block No.35 admeasuring Hec.-Are-Sq.Mtr. 0-70-29. Despite the fact that the land in question was sold to me and the same has been occupied by me since the year 1991, without my knowledge and consent, on 08/07/2022, Defendant Nos.2 and 3 repaid the amount of crop loan, made entry of removing encroachment thereon and though it was unregistered entry, with malice intention to usurp rights of me, the plaintiff, Defendant No.4 got executed Registered Sale Deed No. 1143/2022 of the land in question to sale the land in question in Rs.2,00,000/- (In words Rupees Two Lakh only). As I came to know in this regard on 17/09/2022, I got issued online copy of the said Registered sale deed and after availing copy thereof, I approached Page 10 of 17 Downloaded on : Thu Jun 08 20:35:30 IST 2023 C/CRA/17/2023 ORDER DATED: 05/06/2023 Defendant No.4 and told him that, "I occupy the land in question by way of sale right and I have got constructed a house and a hut with single sloping roof thereon and I have possession thereof. I have recently cultivated the said land. Despite having knowledge of all these facts, why have you got executed registered sale deed of the land in question?" Thus, Defendant No.4 replied me that, "I know that you have purchased the land in question for years. However, registered sale deed thereof has not been executed. Thus, I have got executed this sale deed by making payment of Rs.2,00,000/- (In words Rupees Two lakh). Now, I will usurp possession of the land in question from you anyhow or sale the land in question to anyone." Though I persuaded Defendant No.4 to not do so, he was not convinced and stated that he is determined to occupy possession of the land in question anyhow in illegal manner. Thereafter, I approached Defendant Nos.1 to 3 and scolded them for wrongly executing Registered sale deed of the land in question in favor of Defendant No.4 and get executed Registered sale deed in my favor. However, Defendant Nos.1 to 3 threatened me stating that, "You can do what you like. We have got executed sale deed to Rabari and he shall anyhow take possession of the land in question from you and he may sell the said land to anyone. Now, if you approach us with regard to land in question, we will not spare you." Thus, being scared, I went home and apprised my family members in this regard and despite persuading Defendants in this regard, they are not convinced. Even though the suit land is the land legally purchased by us the Plaintiff and it is under our possession, usage and ownership since the year 1991, under the pretext of revenue record and since the registration of the sale-deed was pending, by having mala fide intention of taking disadvantage of such situation, Defendant Nos.1 to 3 had, without having any right or entitlement, got the Sale-Deed No.1143/2022 dated 08/07/2022 registered in favor of Defendant No.4. Even though Defendant No.4 was aware of the entire facts, he being determined to illegally grab the suit land from us by hook or crook and by wrongfully registering the sale-deed and since there was no other option to stop such illegal act on the part of the Defendants, we have been compelled to file the present suit for obtaining mandatory order, Page 11 of 17 Downloaded on : Thu Jun 08 20:35:30 IST 2023 C/CRA/17/2023 ORDER DATED: 05/06/2023 for canceling the sale-deed and to get injunction order in this matter. Since Defendant Nos. 1 to 3 had sold out the suit land to us the Plaintiff and they had also handed over possession thereof, Defendant Nos. 1 to 3 are not having any right or entitlement to enter into any such registered sale-deed in favor of Defendant No.4 and even though, Defendant No.4 was aware of the entire fact, they have entered into the registered sale-deed illegally, which registered sale-deed is liable to be canceled. The suit land is having ownership, possession and under usage of we the Plaintiff. Therefore, if relief is granted as prayed, the Defendants shall not face to any loss or damage and if the relief shall not be granted as prayed, then the suit land, which is the source of our livelihood, would be grabbed by the Defendants without any rights or entitlement thereof, due to which, we the Plaintiff are likely to face the loss which cannot be compensated monetarily. Thus, it is the prima facie case of us the Plaintiff as well as the balance of convenience is also in favour of us the Plaintiff. A separate application has also been made herewith for obtaining temporary injunction order.
(8) Ground for the Suit:-
The agricultural land bearing Block No.35 (having old Block Number 92 Paiki 1 Paiki 2), having area admeasuring Hectre-Aare-Sq.mtr 0-70-29 situated in the sim of Moje Kotda (Di), Taluka Diyodar, District Banaskantha; which is a farm named as Ravel ni Vaat Padar and possession and usage thereof had been handed over to us by Defendant Nos. 1 to 3 through conditional sales on 19/09/1995 and we, the Plaintiff had made payment of total amount of consideration being Rs.1,44,910/- after paying up the middle term loan as per conditions and asked them to enter into registered sale-deed thereof. At that time, Defendant Nos.1 to 3 had given assurance to enter into sale- deed after arriving at block division. Since then, even after, frequently reminding them to enter into sale- deed, they had found excuses as mentioned in the suit application for one or the other reasons and they did not register the sale-deed even after the block division concluded and, thereby, they had created burden thereon without knowledge of us the Plaintiff under the pretext of revenue record and promised to register the sale-deed after making payment for such Page 12 of 17 Downloaded on : Thu Jun 08 20:35:30 IST 2023 C/CRA/17/2023 ORDER DATED: 05/06/2023 financial burden. On 08/07/2000, they had registered a sale-deed in favor of Defendant No.4, without any rights or entitlement and without knowledge of us the Plaintiff and when on 17/09/2022, we, the Plaintiffs came to know about such fact, we tried to persuade the Defendants, but they did not understand and they had been trying to grab the suit land illegally by hook or crook by giving threats. Since then, gradually, the reason for this suit has been arose within the jurisdiction of this Hon'ble Court."
9. At this stage, it would be apt to take notice of the law laid down by the Apex Court in case of Chhotanben & Another v. Kiritbhai Jalkrushnabhai Thakkar & Others, reported in (2018) 6 SCC 422. Relevant observations in Para.14 are reproduced below :
"14. After having cogitated over the averments in the plaint and the reasons recorded by the Trial Court as well as the High Court, we have no manner of doubt that the High Court committed manifest error in reversing the view taken by the Trial Court that the factum of suit being barred by limitation, was a triable issue in the fact situation of the present case. We say so because the appellants (plaintiffs) have asserted that until 2013 they had no knowledge whatsoever about the execution of the registered sale deed concerning their ancestral property. Further, they have denied the thumb impressions on the registered sale deed as belonging to them and have alleged forgery and impersonation. In the context of totality of averments in the plaint and the reliefs claimed, which of the Articles from amongst Articles 56, 58, 59, 65 or 110 or any other Article of the Limitation Act will apply to the facts of the present case, may have to be considered at the appropriate stage."
10. It would also be not out of place to take notice of the recent judgment of the Apex Court in case of Sri Biswanath Page 13 of 17 Downloaded on : Thu Jun 08 20:35:30 IST 2023 C/CRA/17/2023 ORDER DATED: 05/06/2023 Banik & Another v. Sulanga Bose & Others, reported in (2022) 7 SCC 731. Relevant observations in Para.9, 10 and 11 are reproduced as under :
"9. While rejecting the plaint, the High Court has also observed and held that the suit for a declaration simpliciter under Section 53A of the Transfer of Property Act against the original owner would not be maintainable and for that reliance is placed upon the decision of this Court in the case of Delhi Motor Company (supra). However, it is required to be noted that even the plaintiffs have also prayed for the decree for a permanent injunction claiming to be in possession and the declaration and permanent injunction as such invoking Section 53A of the Transfer of Property Act.
10. When the suit is for a decree of permanent injunction and it is averred that the plaintiffs are in possession of the suit property pursuant to the agreement and thereafter, they have developed the land and that they are in continuous possession since more than twelve years and they are also paying taxes to the Corporation, the cause of action can be said to have arisen on the date on which the possession is sought to be disturbed. If that be so, the suit for decree for permanent injunction cannot be said to be barred by limitation. It is the settled proposition of law that the plaint cannot be rejected partially.
11. Even otherwise, the reliefs sought are interconnected. Whether the plaintiffs shall be entitled to any relief under Section 53Aof the Transfer of Property Act or not has to be considered at the time of trial, but at this stage it cannot be said that the suit for the relief sought under Section 53A would not be maintainable at all and therefore the plaint is liable to be rejected in exercise of powers under Order 7 Rule 11 CPC."
11. Considering the aforesaid legal proposition of law, it is well settled by the Apex Court that while deciding the application under Order 7 Rule 11 of the Code, the entire Page 14 of 17 Downloaded on : Thu Jun 08 20:35:30 IST 2023 C/CRA/17/2023 ORDER DATED: 05/06/2023 plaint has to be seen in the context of totality of averments made in the plaint and the reliefs claimed, which Article of the Limitation Act will apply to the facts of the present case, shall have to be considered at the appropriate stage. Thus, when there are various prayers in the plaint and different Articles of the Limitation Act are applicable, in that eventuality, the said aspect has to be decided by the trial court at the appropriate stage and that the suit cannot be dismissed in part.
12. Now, considering the facts of the case on hand, as it appears, the respondent herein - original plaintiff is in possession of the land in question by way of agreement dated 23.11.1991. It further appears that initially, the said agreement was in the nature of mortgage deed. However, upon completion of the mortgage period, since the petitioners herein could not repay the loan, it was decided to sell some portion of the land i.e. 3 vighas owned by the petitioners for a consideration of Rs.80,000/- in cash in addition to Rs.17,000/- that was given in the year 1991 by way of loan. That on 19.9.1995, further sum of Rs.80,000/-, as agreed, came to be paid to the petitioners and for which, a separate document also came to be executed. It further appears from the pleadings in the plaint that various amount was paid on various dates and thereby, in all, total Rs.1,44,910/- came to be paid by the petitioners herein. However, the sale deed was not executed by the petitioners under one or the other pretext. Thereafter, the petitioners have executed the sale deed in favour of one Virabhai Arjanbhai Desai (original respondent No.4) on 8.7.2022 knowing fully well that the respondent herein - original plaintiff is in occupation of the Page 15 of 17 Downloaded on : Thu Jun 08 20:35:30 IST 2023 C/CRA/17/2023 ORDER DATED: 05/06/2023 said land in question since 1991 and has paid a sum of Rs.1,44,910/- towards the sale consideration. The said fact came to the notice of the present respondent - original plaintiff on 17.9.2022 and thereafter, immediately the suit came to be filed on 6.10.2022.
13. Considering the aforesaid, it appears that by way of suit, the original plaintiff has sought declaration, specific performance and also the injunction. In the said context, if the submissions made by learned advocate for the petitioners are considered with regard to the limitation aspect, various Articles such as Articles 54 and 58 of the Limitation Act are applicable and thereby, as has been held by the Apex Court in case of Chhotanben (Supra), when for the various prayers in the plaint if the different Articles of the Limitation Act are applicable, in that eventuality, the said aspect has to be decided by the trial court at the appropriate stage and that the suit cannot be dismissed in part. Even otherwise, in my considered opinion, keeping in mind the facts of the present case, aspect of limitation is a mixed question of law and fact and thereby, the same cannot be decided without proper evidence being led in that context. In other words, when on bare perusal of the plaint itself, prima facie the suit does not appear to be time barred, the said suit shall not be dismissed by the concerned civil court in exercise of powers conferred under Order 7 Rule 11 of the Code of Civil Procedure. Thus, in my view, the application of the petitioners seeking rejection of plaint under Order 7 Rule 11 of the Code of Civil Procedure, is rightly rejected by the trial court.
Page 16 of 17 Downloaded on : Thu Jun 08 20:35:30 IST 2023C/CRA/17/2023 ORDER DATED: 05/06/2023
14. So far as the contention with regard to maintainability of suit on the basis of unregistered document is concerned, in my view, such contention cannot be accepted at this stage, because, it is a matter of defence and it has to be tested by the trial court at the time of trial. Even otherwise, as per the settled law, at the time of deciding an application under Order 7 Rule 11 of the CPC, the averments of plaint only to be seen.
I answer the question accordingly.
15. In view of the foregoing discussion, the present Civil Revision Application preferred by the original defendants fails and is hereby dismissed accordingly, with no order as to costs. Notice is discharged.
(NIRAL R. MEHTA,J) V.J. SATWARA Page 17 of 17 Downloaded on : Thu Jun 08 20:35:30 IST 2023