Gujarat High Court
Kokilaben D/O Shakarabhai ... vs Gangaram Shakarabhai on 11 October, 2021
Author: Vaibhavi D. Nanavati
Bench: J.B.Pardiwala, Vaibhavi D. Nanavati
C/FA/1547/2020 JUDGMENT DATED: 11/10/2021
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/FIRST APPEAL NO. 1547 of 2020
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE J.B.PARDIWALA
and
HONOURABLE MS. JUSTICE VAIBHAVI D. NANAVATI
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1 Whether Reporters of Local Papers may be allowed
to see the judgment ?
2 To be referred to the Reporter or not ?
3 Whether their Lordships wish to see the fair copy
of the judgment ?
4 Whether this case involves a substantial question
of law as to the interpretation of the Constitution
of India or any order made thereunder ?
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KOKILABEN D/O SHAKARABHAI HARGOVINDBHAI AND W/O BALDEVLAL
MOHANLAL PATEL
Versus
GANGARAM SHAKARABHAI
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Appearance:
MR. ARCHIT P JANI(7304) for the Appellant(s) No. 1
MR GM AMIN(124) for the Defendant(s) No. 12
MR MI HAVA(348) for the Defendant(s) No. 16
MR.CHANAKYA BHAVSAR(6316) for the Defendant(s) No. 16
NOTICE SERVED(4) for the Defendant(s) No. 1,10,11,2,3,7,8,9
NOTICE UNSERVED(8) for the Defendant(s) No. 13,14,15,4,5
UNSERVED EXPIRED (N)(9) for the Defendant(s) No. 6
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CORAM:HONOURABLE MR. JUSTICE J.B.PARDIWALA
and
HONOURABLE MS. JUSTICE VAIBHAVI D. NANAVATI
Date : 11/10/2021
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C/FA/1547/2020 JUDGMENT DATED: 11/10/2021
ORAL JUDGMENT
(PER : HONOURABLE MS. JUSTICE VAIBHAVI D. NANAVATI)
1. This first appeal under Section 96 of the Code of Civil Procedure, 1908 is at the instance of the original plaintiff being aggrieved and dissatisfied by the judgment and decree dated 23.1.2020 passed by the Second Additional Senior Civil Judge, Gandhinagar in the Special Civil Suit No.77 of 1990 below Ex.23. The Second Additional Senior Civil Judge rejected the plaint of the appellant herein under the provisions of Order 7 Rule 11(d) of the Code of Civil Procedure.
2. The operative portion of the judgment and decree dated 23.1.2020 is reproduced thus :-
"(01) Application at Exh-14 of respondent no.16 is allowed according to the provision of Order 7 Rule 11 (d) of CPC.
(02) Suit of plaintiff is rejected.
(03) There is no order regarding cost.
(04) To draw decree as per the order."
3. The case put up by the plaintiff (appellant) may be summarized as under :-
3.1 The plaintiff (appellant and the respondent No.1) are siblings (sister and brother). The appellant is claiming one third share in the land of Account No.727-Block Survey Page 2 of 41 Downloaded on : Sun Jan 16 23:16:40 IST 2022 C/FA/1547/2020 JUDGMENT DATED: 11/10/2021 No.46/6/A of the outskirt of Village : Bhat of District and Sub-
District : Gandhinagar which is an old tenure land and subsequently converted into non-agricultural land admeasuring 00-37-12 Hector-Are-Sq.Mtrs., hereinafter referred to as the suit land.
3.2 The original owner of the suit land was Shakrabhai Hargovindbhai and after the death of Shakrabhai the name of the appellant and the respondents Nos.1 to 4 came to be mutated as legal heirs in the revenue record. Accordingly the appellant and the respondents Nos.1 to 4 became the owners and occupier of the land in question in their capacity as the legal heirs of the deceased Shakrabhai.
3.3 On 8.12.1980 the legal heirs of Shakrabhai decided to divide the said suit land amongst themselves Baldevbhai, Jijibhai, Rameshbhai Baldevbhai, Bharatbhai Baldevbhai, Bhailalbhai Jijibhai, Shakriben Jijibhai, Shashiben Jijibhai, Maniben widow of Somabhai and Maneklal Somabhai were the confirming party to the distribution deed which was registered between the plaintiff and the respondents Nos.1 to 3 by a registered deed Entry No.1599 of 1980 on the basis of which the appellant is claiming one fifth share of the suit property.
3.4 It is the further case of the appellant that though the appellant was entitled to one fifth share of the suit land the Page 3 of 41 Downloaded on : Sun Jan 16 23:16:40 IST 2022 C/FA/1547/2020 JUDGMENT DATED: 11/10/2021 respondent No.1 sold the suit land to the respondent No.4 by a registered Sale Deed Entry No.2 of 1981 dated 1.1.1981. The respondent No.1 had no right or authority to sell the land in dispute without seeking the permission/signature of the appellant.
3.5 It is alleged that the respondent No.1 executed such a sale deed in favour of the respondent No.4 with the intention to deprive the plaintiff of her share in the suit land.
(a) The name of the respondent No.4 came to be mutated in the revenue record on 8.1.1981 being the Mutation Entry No.5370. The said entry came to be posted in the revenue record in the name of the respondent No.4 without issuance of notice under Section 135D of the Gujarat Land Revenue Code, 1879 and the appellant herein had no information or knowledge about issuance of the said notice.
(b) The respondent No.4 then executed a registered Sale Deed in favour of the respondent No.5 on 24.6.1996 vide Entry No.2242 and on the said basis Mutation Entry No.2210 dated 19.7.1996 came to be mutated in the revenue record.
(c) Thereafter the respondent No.5 executed registered a Sale Deed in favour of the respondents Nos.6 and 7 being Entry No.1422 dated 7.4.1997 on the basis of which Entry No.2298 Page 4 of 41 Downloaded on : Sun Jan 16 23:16:40 IST 2022 C/FA/1547/2020 JUDGMENT DATED: 11/10/2021 came to be mutated on 12.6.1997 in the revenue record.
(d) The respondents Nos.6 and 7 thereafter executed a registered sale deed in favour of respondents Nos.12 and 13 on 30.1.2001 by Registration No.2847 and Mutation Entry No.2617 came to be mutated in the revenue record on 12.2.2002.
(e) The respondents Nos.12 and 13 then executed a registered Sale Deed in favour of the respondent No.14 by Entry No.3688 on 24.4.2006 resulting into Mutation Entry No.2980 in the revenue record on 19.5.2006.
(f) The respondent No.14 then executed a registered Sale Deed in favour of the respondent No.15 by Entry No.13118 on 13.10.2008 and the mutation entry with regard to the same was made in the revenue record by Entry No.3656.
(g) The respondent No.15 thereafter executed registered Sale Deed in favour of the respondent No.16 by Entry No.465 on 5.1.2019.
(h) The Mutation Entry No.5011 came to be mutated in the revenue record on 9.1.2019.
3.6 It is the case of the appellant that the above referred Sale Deeds adversely affect her rights in the suit land. It is Page 5 of 41 Downloaded on : Sun Jan 16 23:16:40 IST 2022 C/FA/1547/2020 JUDGMENT DATED: 11/10/2021 the case of the appellant that all the sale transactions i.e. from 1.1.1981 till the last sale between the respondents Nos.15 and 16 dated 5.1.2019 are required to be declared as null and void in view of the fact that since the beginning, no procedure as required under the law has been followed. There is no title clearance of the suit land before executing the aforesaid sale deed neither public notice was issued in any of the newspapers in the name of the original owner of the suit land nor notice under Section 135D of the Land Revenue Code was issued to the appellant regarding the entries mutated in the revenue record from time to time.
3.7 It came to the knowledge of the appellant for the first time that the suit land had been sold on 22.1.2019. When the appellant contacted respondent No.1 as she was in need of money and expressed her desire and intention to sell her part of the suit land, the respondent No.1 did not answer satisfactorily and upon inquiry made by the appellant herein it was revealed that the respondent No.1 had sold the suit land before many years, and the appellant was told that since she was a daughter she was not entitled to any right in the property. The cause of action for instituting the suit arose when the appellant obtained the revenue record on 22.1.2019 and it came to the knowledge of the appellant that the respondent No.1 had alienated the suit property without the knowledge of the appellant and the said land has been Page 6 of 41 Downloaded on : Sun Jan 16 23:16:40 IST 2022 C/FA/1547/2020 JUDGMENT DATED: 11/10/2021 transferred from time to time without the knowledge of the appellant.
4. The respondent No.16 filed an application under Order 7 Rule 11D of the Civil Procedure Code, 1908 for rejection of the plaint below Ex.14 and stated in paragraphs 1 to 7 which are produced thus :-
"(1) Here in this suit the Defendant No. 16 Karnavati Builders a partnership firm through its partner Bhisham Jhangiram Ramani, by invoking the provisions of Rule 11 (d) of Order 7 of the Code of Civil Procedure, begs to submit this application for rejection of the plaintiff's plaint as under:-
(2) That the plaintiff's suit is completely barred by the provisions of Articles 58 and/or 59 and/or 110 of the Limitation Act wherein under Article 58 period of limitation is prescribed 3 years from the right to sue first accrues, under Article 59 to cancel or set aside an instrument i.e. sale deed is prescribed 3 years from the facts entitling the plaintiff to have the instrument- sale deed cancelled and under Article 110 the period of limitation is prescribed 12 years from the exclusion becomes known to the plaintiff.
(3) Plaintiff's suit is also barred by provisions of Section 90, 91 of the Indian Evidence Act.
(4) The plaintiff's suit is also barred by provision of Section Page 7 of 41 Downloaded on : Sun Jan 16 23:16:40 IST 2022 C/FA/1547/2020 JUDGMENT DATED: 11/10/2021 48 of The Registration Act.
(5) The relevant Provision contained in the Rule-11 (d) of Order-7 of the Code of Civil Procedure reads as such, "11 Rejection of Plaint. - The plaint shall be rejected in the following cases:-
(a) where it does not disclose a cause of action;
(b) where the relief claimed is undervalued, and the plaintiff, on being required by the court to correct the valuation within a time to be fixed by the court, fails to do so;
(c) where the relief claimed is properly valued but the plaint is written upon paper insufficiently stamped, and the plaintiff, on being required by the court to supply the requisite stamp paper within a time to be fixed by the court, fails to do so;
(d) where the suit appears from the statement in the plaint to be barred by any law;
(e) where it is not filed in duplicate;
(f) where the plaintiff fails to comply with the provisions of Rule 9."
(6) It is a settled principal of law as held by the Hon'ble Supreme Court, reported (2003) 1 Supreme Court Cases 557in the case between SALEEM BHAI AND OTHERS Versus STATE OF MAHARASHTRA AND OTHERS that:
"The Trial Court can exercise the power under Order 7 Page 8 of 41 Downloaded on : Sun Jan 16 23:16:40 IST 2022 C/FA/1547/2020 JUDGMENT DATED: 11/10/2021 Rule 11 of 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 Rule 11 (a) &
(d) 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 this stage."
(7) Keeping in our mind the aforesaid settled legal provision, if we proceed to read the averments contained in the plaintiff's plaint we may find that the plaintiff has filed present Spl.Civil Suit to cancel registered sale deed No. 2/1981 dated 01/01/1981 executed by Defendant No. 1 in favour of Defendant No. 4. He has further prayed to cancel the registered sale deed No. 2242 dated 24/06/1996 executed by Defendant No.4 in favour of Defendant No. 5; registered sale deed No. 1422 dated 17/04/1997 executed by Defendant No. 5 in favour of Defendant No. 6 and 7; registered sale deed No. 2847 dated 31/07/2001 executed by Defendant No. 6 and 7 in favour of Defendant No. 12 and 13; registered sale deed No.3688 dated 24/04/2006 executed by Defendant No. 12 and 13 in favour of Defendant No. 14; registered sale deed No. 13118 dated 13/10/2008. executed by Defendant No. 14 in favour of Defendant No. 15;registered sale deed No. 465 dated 05/01/2019 executed by Defendant No. 15 in favour of Defendant No. 16 being the documents injurious to the plaintiff's 1/5thshare in the suit land."
Paragraphs Nos.13 to 16 are reproduced thus :-
Page 9 of 41 Downloaded on : Sun Jan 16 23:16:40 IST 2022C/FA/1547/2020 JUDGMENT DATED: 11/10/2021 "(13) It is further stated that the plaintiff herself alongwith her mother Menaben Shakrabhai for self and as a guardian of minor Pramukhbhai Shakrabhai and minor Suryakant alias Sureshbhai Shakrabhai had executed a registered partition deed on 4/12/1980 which was registered at Sr. No. 1599 on 31/12/1980 in the office of Sub-Registrar, Gandhinagar (its copy is produced by plaintiff vide list of documents Ex. 3/4).
Wherein the plaintiff Kokilaben is cited as Fifth Party having age of about 25 years, as daughter of Shakrabhai Hargovindbhai and wife of Baldevlal Mohanlal Patel and has made her signature as such in the said partition deed as one of the executants. Thus, the plaintiff Kokilaben daughter of Shakrabhai Patel and wife of Baldevlal Mohanlal Patel was one of the executing parties of the registered partition deed No. 1599 and was an adult married person.
(14) From the aforesaid facts averred by the plaintiff in the plaint and the documents forming the basis of plaintiff's averments in the plaint, it is stated that the plaintiff's suit is totally barred by the law of Limitation. Because, as per recitals of plaint para-7 narrated in respect of the cause of action for filing this suit, the plaintiff avers that upon necessity of money on one fine day, the plaintiff met and contacted the defendant No.1 who denied her share and told to have sold out the land and upon obtaining copies of revenue records on 22/01/2019 the plaintiff avers to have come to know the fact that the land Survey No. 46/6 of village Bhat was sold out by the defendant No. 1 to defendant Page 10 of 41 Downloaded on : Sun Jan 16 23:16:40 IST 2022 C/FA/1547/2020 JUDGMENT DATED: 11/10/2021 No. 4 by executing registered sale deed No. 2/1981 on 01/01/1981. Thus, after lapse of 39 years from the execution of registered partition deed No. 1599 executed on 4/12/1980 and registered on 31/12/1980 and registered sale deed No. 2/1981 dated 01/01/1981 executed by defendant No. 1 in favour of defendant No. 4, the plaintiff has come before this Court claiming her alleged 1/5th share in land Survey No. 46/6 of Village Bhat.
(15) It is stated and submitted that as per copy of partition deed Mark 3/4 produced by the plaintiff along with the plaint, it transpires that the plaintiff being an adult and married person had executed a registered partition deed No. 1599 on 04/12/1980 alongwith her Mother Menaben and brothers Pramukhbhai and Sureshbhai. The plaintiff had also put her signature in that capacity in the partition deed. As per said partition deed the agricultural land Survey No. 46/6 and Survey No. 46/3 gone to the absolute share of the defendant No. 1 Gangaram Shakrabhai Patel. The said partition deed was executed on 04/12/1980 and after receiving the relevant permission from the collector it was registered on 31/12/1980 at Sr. No. 1599 by the Sub-Registrar Gandhinagar. The defendant No. 1 Gangaram Shakrabhai Patel on the very next day i.e on 01/01/1981 had executed registered sale deed ?No. 2/1981 dated 01/01/1981 in favour of defendant No.4 for the land Survey No. 46/6(it's copy at Mark 3/5 produced by the plaintiff).
Page 11 of 41 Downloaded on : Sun Jan 16 23:16:40 IST 2022C/FA/1547/2020 JUDGMENT DATED: 11/10/2021 (16) Thus, the registered partition deed dated 4/12/1980 registered on 31/12/1980 was executed as one of the executants in favour of defendant No. 1 and therefore the plaintiff has cleverly drafted the plaint and has not prayed for cancellation of the said registered partition deed Mark 3/4."
Paragraphs Nos.21 to 23 are reproduced thus :-
"(21) Keeping in mind the aforesaid principle settled by the Hon'ble Supreme Court that considering the averments in the plaint if it is found that the suit is clearly barred by law of limitation, the same can be rejected in exercise of powers under Order 7 Rule 11(d) of the CPC, as per submissions made in foregoing paragraphs No. 7,8,9,10,11,12,13,14, 15, 16, 17, 18 and 19 of this application, the plaintiff's suit is completely barred by law of Limitation, as it is filed after lapse of 39 years from the execution of registered partition deed Mark 3/4 by the plaintiff herself and by her mother Menaben alongwith her minor brothers Pramukhbhai and Sureshbhai i.e. from the executing date 04/12/1980 and registering date 31/12/1980 the plaintiff has come before this Court in the year April, 2019 which is clearly time barred by the provisions of Articles 58 and/or Article 59 and/or 110 of the Limitation Act. As stated hereinbefore the plaintiff's suit is hit by the provision of Section 48 of the Registration Act and the documents produced by the plaintiff alongwith her plaint at Mark 3/4 - registered partition deed and Mark 3/5- registered sale deed being the documents more than 30 years old and being registered Page 12 of 41 Downloaded on : Sun Jan 16 23:16:40 IST 2022 C/FA/1547/2020 JUDGMENT DATED: 11/10/2021 documents for the suit land Survey No. 46/6 coupled with delivery of its possession on 01/01/1981, both the registered documents can not be challenged after lapse of 39 years by the plaintiff in this suit.
(22) Lastly, the plaintiff herself while narrating the facts regarding cause of action in plaint para-7 of this suit has clearly stated that upon necessity of money she met and contacted the defendant No. 1 who denied. This essentially means that the plaintiff, with an ulterior motive to snatch money from the defendant No.16 who holds legal possession with ownership of the suit land has wrongly dragged all the subsequent purchasers from defendant No. 4 to defendant No. 16 in this suit.
(23) Hence, in view of the aforesaid factual aspects of the plaintiff's averments made in the plaint and the recitals of the documents i.e. registered partition deed Mark 3/4 and registered sale deed Mark 3/5 relied and based by the plaintiff for pleadings in the plaint, it is prayed to reject the plaint under provision of Order 7 Rule 11 (d) of the CP Code. And for this act of kindness the Defendant as in duty bound shall forever pray."
5. The learned trial Court rejected the plaint considering the submissions made by the appellant and the respondents. The paragraphs Nos.11 to 15 of the order rejecting the plaint read thus :-
Page 13 of 41 Downloaded on : Sun Jan 16 23:16:40 IST 2022C/FA/1547/2020 JUDGMENT DATED: 11/10/2021 "(11) With regard to above mentioned facts and discussion, this court cites the judgment of Hon'ble High Court of Gujarat in Becharbhai Zaverbhai Patel and another (supra) (2013 (1) GLR page no. 398). In this Hon'ble Apex Court held that, "Considering the averments in the plaint and supporting documents produced along with the plaint if the suit is clearly barred by law of limitation, plaint is required to be rejected under Order 7 Rule 11(d) " of the Code of Civil Procedure. It is further observed and held that in case of suit challenging the registered document, date of registration becomes date of deemed knowledge and by clever drafting and vague averments, the suit which is otherwise barred by law of limitation can not be brought within the period of limitation."
According to the judicial principles established in the aforementioned judgments, date of registration of any document shall be considered date of deemed knowledge. The suit can be filed within three years of the date of execution of registered sale deed. The registered sale deed of suit property was executed in the year 1981, hence the limitation period was over in the year 1984 for initiating suit in order to cancel the registered sale deed. The plaintiff has initiated the present suit after about 35 years of completion of limitation period. The plaintiff has filed suit after completion of limitation. It appears that the aforementioned suit is barred by Article-58 of Page 14 of 41 Downloaded on : Sun Jan 16 23:16:40 IST 2022 C/FA/1547/2020 JUDGMENT DATED: 11/10/2021 Part-3 of the Schedule of the Limitation Act. Hence, the suit is deemed to be rejected as per Order-7 Rule-11 of C.P.C. since it is filed after the limitation period.
(12) Moreover, in the case of T. Trivandam Versus T.V. Satyapal and another reported in (1977) 4 SCC 467, the Hon'ble Supreme Court has observed and held that "if clever drafting has created the illusion of a cause of action, it is the duty of the Court to nip it in the bud at the first hearing and by clever drafting a suit which is otherwise barred by law of limitation can not be brought within the period of limitation. It can not be disputed that if on the face of it and considering the averments made in plaint/ suit as they are, if it is found that the suit is clearly barred by the law of limitation, plaint can be rejected under Order 7 Rule 11(d) of the Code of the Civil Procedure."
In the aforementioned judgement, the Hon'ble Supreme court has held that if the illusion of cause of action is created by clever drafting and the case is barred by the law of limitation then such case must be rejected at the first hearing. It appears from the revenue record that the plaintiff had information about the execution of registered sale deed since 1981 and the aforementioned suit is filed after 35 years. The suit is filed 38 years after the execution of registered sale deed. Hence, it appears that the suit is filed in order to harass the bona fide purchaser and to become the owner of Page 15 of 41 Downloaded on : Sun Jan 16 23:16:40 IST 2022 C/FA/1547/2020 JUDGMENT DATED: 11/10/2021 the suit property by any means with the use of clever drafting and legal loopholes to nullify legal provisions and obstacles. The suit is filed after the limitation period, hence the suit is liable to be rejected under Order 7 Rule 11(d) of the Code of the Civil Procedure.
(13) Moreover, in the case of Dilboo (Smt)(Dead) By Lrs & Anr vs. Dhanraji (Smt)(Dead) and Others reported in (2000) 7 SCC 702, the Hon'ble Supreme Court has observed and held that, "Whenever the document is registered, the date of the 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 can not be allowed to extend the period of limitation by merely claiming that he had no knowledge.
In the said decision, the Hon'ble Supreme Court has also observed and held that plaint can be rejected in exercise of powers under 7 Rule 11(d) of the Code of Civil Procedure if it is found that even accepting all the averments made in the suit, it is found that the suit is barred by the law of limitation."
In the aforementioned judgment, the Hon'ble Supreme Court has held that Whenever the document is registered, the Page 16 of 41 Downloaded on : Sun Jan 16 23:16:40 IST 2022 C/FA/1547/2020 JUDGMENT DATED: 11/10/2021 date of the registration becomes the date of deemed knowledge and a party can not be allowed to extend the period of limitation by merely claiming that he had no knowledge. Moreover, it is an established legal principle that Ignorance of law is not an excuse. In this case, plaintiff's brother has executed the registered sale deed in favour of respondent no.4 in the year 1981 after receiving the consideration for the same. The plaintiff was also aware of that transaction. Therefore, the suit should have been filed within three years i.e by 1984 as per article-56, 58 of Part-3 and article-59 of Part-4 of the Schedule of the Limitation Act. The plaintiff has filed suit 35 years after completion of the limitation period. Hence, it appears that the aforementioned suit is barred by article-56, 58 of Part-3 and article-59 of Part-4 of the Schedule of the Limitation Act. Thus, the suit is filed after the limitation period, hence the suit is liable to be rejected under Order 7 Rule 11(d) of the Code of the Civil Procedure.
(14) Moreover, in the case of Raghwendra sharan Singh Vs Ram Prasanna Singh (Dead) by Lrs reported in 2019 SCC Online SC 372, the Hon'ble Supreme Court has observed and held that, "Now, so far as the application on behalf of the original plaintiff and even the observations made by the learned trial Court as well as the High Court that the question with respect to the limitation is a mixed Page 17 of 41 Downloaded on : Sun Jan 16 23:16:40 IST 2022 C/FA/1547/2020 JUDGMENT DATED: 11/10/2021 question of law and facts which can be decided only after the parties lead the evidence is concerned, as observed and held by this Court in the cases of Sham Lal alias Kuldip (supra); N.V. Srinivas Murthy (supra) as well as in the case of Ram Prakash Gupta (supra), considering the averments in the plaint if it is found that the suit is clearly barred by the law of limitation, the same can be rejected in exercise of powers under Order 7 Rule 11(d) of the CPC."
In the aforementioned judgment, the Hon'ble Supreme Court has held that the question with respect to the limitation can not be considered a mixed question of law and facts when the limitation period can be known from the plaint. In the aforementioned case, it becomes clear that the suit is filed after the limitation period on the basis of plaint and submitted documents. The plaintiff has filed the present suit 35 years after completion of the limitation period. Hence, it appears that the aforementioned suit is barred by article- 56, 58 of Part-3 and article-59 of Part-4 of the Schedule of the Limitation Act. Thus, the suit is filed after the limitation period, hence the suit is liable to be rejected under Order 7 Rule 11(d) of the Code of the Civil Procedure.
(15) In the aforementioned suit, the date of registration of the sale deed shall be considered the date of deemed knowledge. The suit should have been filed within three years of the registration of sale deed. The commencement of Page 18 of 41 Downloaded on : Sun Jan 16 23:16:40 IST 2022 C/FA/1547/2020 JUDGMENT DATED: 11/10/2021 limitation period shall be considered from the registration date of sale deed even if the cause of action is presented by clever drafting. Moreover, the plaintiff has prayed for the partition of the suit property. In the aforementioned case, partition deed was registered in the year 1980 with respect to the suit property. Thereafter, the respondent sold the suit property to respondent no.4 after receiving consideration and executed cancellation of partition deed in the year 1991. On the basis of documents submitted by the plaintiff, it appears that the plaintiff had information about the partition deed and its cancellation with respect to the suit property. Moreover, the plaintiff was entitled to file suit within twelve years of the cancellation of partition deed which was executed in 1991. The present suit is filed after completion of that limitation period. Hence, the relief of partition sought by the plaintiff is barred by the law of limitation. The suit is filed after the limitation period and it is barred by article-56, 58 of Part-3 and article-59 of Part-4 of the Schedule of the Limitation Act. Therefore, the suit is filed after the limitation period, as per the provision of Order 7 Rule 11(d) of the Code of the Civil Procedure. The aforementioned suit is out of the limitation period and can not be tried. As per the above stated discussion, application of respondent no.16 is liable to be accepted. Hence, issue no.1 is responded with affirmation and in the interest of justice, the following order is passed with respect to issue no.2.
The Cause of Action as narrated in the plaint (true translation) :-
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6. Though, we the plaintiff have 1/5 share of this land in question on the basis of registered partition deed of this land in question, the respondent No.1 has sold this land in question to the respondent No.4 through a registered sale deed No.2/1981 on 01.01.1987 without our signature or consent and without informing us. Thereafter, although, the respondent No.4 does not have sufficient ownership right for the land, the respondent No.4 executed a sale deed in favour of the respondent No.5 vide sale deed registration No.2242 on 24.06.1996. On the basis of the same, mutation entry No.2210 was made in the revenue record on 19.07.1996. The deed executed by the respondent No.4 in favour of respondent No.5 was with incomplete ownership right and was without signature and consent of the plaintiff and the same was executed to terminate the rights of us the plaintiff. We the plaintiff, did not have any knowledge regarding that deed. Thereafter, the respondent No.5 executed the sale deed in favour of respondent No.6 and 7 vide registration No.1422, on 17.04.1997. On the basis of the same, entry No.2298 was made in the revenue record on 12.06.1997. Thereafter, the respondent No.6 and 7 sold the land by executing the sale deed in favour of respondent No.12 and 13 vide registered sale deed registration No.2847, on 31.07.2001. On the basis of the same, mutation entry No.2617 was made in the revenue record on 18.02.2002. Thereafter, the respondent No.12 and 13 sold the land by executing the sale deed in favour of respondent No.14 vide registered sale deed registration No.3688, on 24.04.2006, mutation entry No.2617 regarding the same was made in the revenue record on 19.05.2006. Thereafter, the respondent No.14 sold the land by executing the sale deed in favour of Page 20 of 41 Downloaded on : Sun Jan 16 23:16:40 IST 2022 C/FA/1547/2020 JUDGMENT DATED: 11/10/2021 respondent No.15 vide registered sale deed registration No.13118, on 13.10.2008. Mutation entry No.3656 regarding the same was made in the revenue record on 13.10.2008. Thereafter, the respondent No.15 executed the sale deed in favour of respondent No.16 vide registered sale deed registration No.465, on 05.01.2019 and mutation entry No.5011 regarding the same was made in the revenue record on 09.01.2019. We the plaintiff did not have any information regarding the same nor the notice under section 135(D) of the Land Revenue Code was served. But, as we the plaintiff was in need of money, I contacted the respondent No.1. The respondent No.1 informed regarding the sale of the land and denied our right.
Therefore, I obtained the revenue record on 22.01.2019 and came to know about the circumstances mentioned in the plaint which is still continuing.
Submissions on behalf of the appellant (original plaintiff):-
7. Mr. Archit Jani, the learned counsel appearing for the appellant submitted that the appellant and the respondents are sister and brothers. The appellant and the respondents being legal heirs of deceased Shakrabhai entered into a partition deed No.1599 of 1980 in the presence of confirming parties as stated above and on the said basis the appellant is entitled to one fifth share in the suit land. The respondent No.1 entered into a registered Sale Deed with respondent No.4 on 1.1.1981 and subsequently the suit land came to be transferred seven times by way of registered Sale Deed and the last Sale Deed is Page 21 of 41 Downloaded on : Sun Jan 16 23:16:40 IST 2022 C/FA/1547/2020 JUDGMENT DATED: 11/10/2021 a transfer by the respondent No.15 to respondent No.16 on 20.2.2019.
7.1 It is submitted by Mr. Jani that such transfers are required to be held as null and void since the said transfers have been given effect without issuance of notice under Section 135D of the Bombay Land Revenue Code to the appellant, without following due procedure as established under the law by seeking title clearance certificate, giving public notice.
7.2 In view of above, it is submitted by Mr. Jani that when the appellant has one fifth share in the suit property, such transfer could not be given effect to. He submitted that all the transactions between 1.1.1987 to 22.1.2019 between the respondents Nos.1 to 16 be cancelled and that such sale deeds are not binding to the appellant.
7.3 It is further submitted that the respondent No.16 be directed to partition the suit land and hand over one fifth share of the suit land to the appellant and hand over the possession of the same and may not hinder the rightful use of the suit land by the appellant.
7.4 In support of his submissions he relied on the decision in the case of Vineeta Sharma vs. Rakesh Sharma and Ors., (2020) 9 SCC 1 and submitted that the appellant being co-Page 22 of 41 Downloaded on : Sun Jan 16 23:16:40 IST 2022
C/FA/1547/2020 JUDGMENT DATED: 11/10/2021 parcener in the suit property is entitled to one fifth share in the suit property and submitted that the law is well settled that the daughter being a co-parcener since birth is entitled to the share in the suit property and relying on the above referred decision submitted that the appellant's appeal be allowed in view of the settled legal position as stated above.
Submissions on behalf of the respondent No.16 (original defendant No.16) :-
8. Mr. M. I. Hawa, the learned counsel appearing for the respondent No.16 submitted that the appellant and the respondents entered into a registered Partition Deed dated 8.12.1980 bearing Entry No.1599 of 1980 for the land bearing Survey No.46/6/A of the outskirt of Village : Bhat of District and Sub-District : Gandhinagar admeasuring 00-37-12 Hector-
Are-Sq.Mtrs. By the said Partition Deed land bearing Survey No.46/6/A of Village : Bhat of District and Sub-District :
Gandhinagar admeasuring 00-37-12 Hector-Are-Sq.Mtrs. Came to the absolute share of the respondent No.1. Mr. Hawa further relied on a table detailing relevant transactions with respect to the suit land which is produced thus :-
Sr. Date of Details of the relevant
No. transactions transaction
1 1.1.1981 Respondent No.1 sold to
respondent no.4 vide
registered Sale Deed no.2 of
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C/FA/1547/2020 JUDGMENT DATED: 11/10/2021
1981.
2 24.6.1996 Respondent No.4 sold to
respondent no.5 vide
registered Sale Deed no.2242
of 1996.
3 17.4.1997 Respondent No.5 sold to
respondent no.6 and 7 vide
registered Sale Deed No.1422
of 1997.
4 31.7.2001 Respondent No.6 and
respondent no.7 sold to
respondent No.12 and 13 vide
registered Sale Deed No.2847
of 2001.
5 24.4.2006 Respondent No.12 and
respondent no.13 sold to
respondent No.14 vide
registered Sale Deed No.3688
of 2008.
6 13.10.2008 Respondent No.14 sold to
respondent no.15 vide
registered Sale Deed No.13118
of 2008.
7 5.1.2019 Respondent No.15 sold to
respondent no.16 vide
registered Sale Deed No.465
of 2019.
8.1 The appellant and the respondents are sisters and
brother. The appellant never objected to any of the Sale Deed entered into by the respondents between 1987 to 2019 and the aforesaid transactions have been given effect since 40 years. He further submitted that Articles 58 and 59 of the Limitation Act provide for period of three years. He submitted that the first Page 24 of 41 Downloaded on : Sun Jan 16 23:16:40 IST 2022 C/FA/1547/2020 JUDGMENT DATED: 11/10/2021 Sale Deed was executed by the respondent No.1 in favour of the respondent No.4 by a registered Sale Deed No.2 of 1981 on 1.1.1981. He relied on the registered Partition Deed Mark 3/4 which was produced by the appellant herself in which the appellant and her mother Meenaben alongwith minor brothers Pramukhbhai and Sureshbhai i.e. from the executing date 4.12.1980 and registering date 30.1.1980. The appellant came before the Court in the April, 2019 which is clearly time barred under the provisions of Articles 58 and/or 59 and/or Section 110 of the Limitation Act.
8.2 He submitted that all the documents, including i.e. all the Sale Deeds are registered Sale Deeds and the Partition Deed is a registered Partition Deed. The delivery of the possession was given to the respondent No.1 and he was in possession since 1.1.1981 and, therefore, the registered documents could not be a subject matter of challenge after lapse of 39 years by filing the present suit. He submitted that the trial Court has rightly considered all the factual as well as legal aspects and rightly rejected the plaint being barred by the limitation under the provisions of Order 7 Rule 11(d) of the Code.
9. We have heard Mr. Archit Jani, the learned counsel appearing for the appellant and Mr. M. I. Hawa, the learned counsel appearing for the respondent No.16.Page 25 of 41 Downloaded on : Sun Jan 16 23:16:40 IST 2022
C/FA/1547/2020 JUDGMENT DATED: 11/10/2021 Position of Law :-
10. While considering the scope and ambit of the application under Order 7 Rule 11 of the Civil Procedure Code, the ratio laid down by the Hon'ble Supreme Court on Order 7 Rule 11 of the Civil Procedure Code is required to be referred to and considered.
(a) In the case of Dahiben vs. Arvindbhai Kalyanji Bhanusali (Gajra) (D) through Lrs & Ors., reported in 2020 AIR (SC) 3310. Paragraphs 12.1 to 12.3 and 14 reads thus :-
"12.1 We will first briefly touch upon the law applicable for deciding an application under Order VII Rule 11 CPC, which reads as under:
"11. Rejection of plaint.- The plaint shall be rejected in the following cases:-
(a) where it does not disclose a cause of action;
(b) where the relief claimed in undervalued, and the plaintiff, on being required by the Court to correct the valuation within a time to be fixed by the Court, fails to do so;
(c) where the relief claimed is properly valued but the plaint is written upon paper insufficiently stamped, and the plaintiff, on being required by the Court to supply the Page 26 of 41 Downloaded on : Sun Jan 16 23:16:40 IST 2022 C/FA/1547/2020 JUDGMENT DATED: 11/10/2021 requisite stamp-paper within a time to be fixed by the Court, fails to do so;
(d) where the suit appears from the statement in the plaint to be barred by any law;
(e) where it is not filed in duplicate;
(f) where the plaintiff fails to comply with the provisions of rule 9 Provided that the time fixed by the Court for the correction of the valuation or supplying of the requisite stamp-paper shall not be extended unless the Court, for reasons to be recorded, is satisfied that the plaintiff was prevent by any cause of exceptional nature for correction the valuation or supplying the requisite stamp-paper, as the case may be, within the time fixed by the Court and that refusal to extend such time would cause grave injustice to the plaintiff." (emphasis supplied) The remedy under Order VII Rule 11 is an independent and special remedy, wherein the Court is empowered to summarily dismiss a suit at the threshold, without proceeding to record evidence, and conducting a trial, on the basis of the evidence adduced, if it is satisfied that the action should be terminated on any of the grounds contained in this provision.
The underlying object of Order VII Rule 11 (a) is that if in a suit, no cause of action is disclosed, or the suit is barred by limitation under Rule 11 (d), the Court would not permit the plaintiff to unnecessarily protract the proceedings in the suit. In Page 27 of 41 Downloaded on : Sun Jan 16 23:16:40 IST 2022 C/FA/1547/2020 JUDGMENT DATED: 11/10/2021 such a case, it would be necessary to put an end to the sham litigation, so that further judicial time is not wasted .
In Azhar Hussain v. Rajiv Gandhi1 this Court held that the whole purpose of conferment of powers under this provision is to ensure that a litigation which is meaningless, and bound to prove abortive, should not be permitted to waste judicial time of the Court, in the following words :
"12. ...The whole purpose of conferment of such power is to ensure that a litigation which is meaningless, and bound to prove abortive should not be permitted to occupy the time of the Court, and exercise the mind of the respondent. The sword of Damocles need not be kept hanging over his head unnecessarily without point or purpose. Even if an ordinary civil litigation, the Court readily exercises the power to reject a plaint, if it does not disclose any cause of action."
12.2 The power conferred on the court to terminate a civil action is, however, a drastic one, and the conditions enumerated in Order VII Rule 11 are required to be strictly adhered to.
12.3 Under Order VII Rule 11, a duty is cast on the Court to determine whether the plaint discloses a cause of action by scrutinizing the averments in the plaint, read in conjunction with the documents relied upon, or whether the suit is barred by any law.
14. The Limitation Act, 1963 prescribes a time-limit for the Page 28 of 41 Downloaded on : Sun Jan 16 23:16:40 IST 2022 C/FA/1547/2020 JUDGMENT DATED: 11/10/2021 institution of all suits, appeals, and applications. Section 2(j) defines the expression "period of limitation" to mean the period of limitation prescribed in the Schedule for suits, appeals or applications. Section 3 lays down that every suit instituted after the prescribed period, shall be dismissed even though limitation may not have been set up as a defence. If a suit is not covered by any specific article, then it would fall within the residuary article.
Articles 58 and 59 of the Schedule to the 1963 Act, prescribe the period of limitation for filing a suit where a declaration is sought, or cancellation of an instrument, or rescission of a contract, which reads as under :
Description of suit Period of of Time from which limitation to run period begins
58. To obtain any Three years When the right to other declaration. sue first accrues.
59. To cancel or set Three years When the facts aside an instrumentor entitling the plaintiff decree or for the to have the recession of a instrument or decree contract. cancelled or set aside or the contract rescinded first become known to him.
The period of limitation prescribed under Articles 58 and 59 of the 1963 Act is three years, which commences from the date when the right to sue first accrues.
In Khatri Hotels Pvt. Ltd. & Anr. v. Union of India & Anr.,12 this Court held that the use of the word 'first' between the Page 29 of 41 Downloaded on : Sun Jan 16 23:16:40 IST 2022 C/FA/1547/2020 JUDGMENT DATED: 11/10/2021 words 'sue' and 'accrued', would mean that if a suit is based on multiple causes of action, the period of limitation will begin to run from the date when the right to sue first accrues. That is, if there are successive violations of the right, it would not give rise to a fresh cause of action, and the suit will be liable to be dismissed, if it is beyond the period of limitation counted from the date when the right to sue first accrued.
A three-Judge Bench of this Court in State of Punjab v. Gurdev Singh,13 held that the Court must examine the plaint and determine when the right to sue first accrued to the plaintiff, and whether on the assumed facts, the plaint is within time. The words "right to sue" means the right to seek relief by means of legal proceedings. The right to sue accrues only when the cause of action arises. The suit must be instituted when the right asserted in the suit is infringed, or when there is a clear and unequivocal threat to infringe such right by the defendant against whom the suit is instituted.
Order VII Rule 11(d) provides that where a suit appears from the averments in the plaint to be barred by any law, the plaint shall be rejected.
(b) In the case of Raghwendra Sharan Singh vs. Ram Prasanna Singh (Dead) by Lrs, reported in (2020) 16 SCC 601. Paragraphs 6.2 to 6.8 reads thus :-
"6.2 While considering the scope and ambit of the application under Order 7 Rule 11 of the CPC, few decisions of this Court on Order 7 Rule 11 of the CPC are required to be referred to Page 30 of 41 Downloaded on : Sun Jan 16 23:16:40 IST 2022 C/FA/1547/2020 JUDGMENT DATED: 11/10/2021 and considered.
6.3 In the case of T. Arivandandam (supra), while considering the very same provision i.e. Order 7 Rule 11 of the CPC and the decree of the trial Court in considering such application, this Court in para 5 has observed and held as under:
"5. We have not the slightest hesitation in condemning the petitioner for the gross abuse of the process of the court repeatedly and unrepentently resorted to. From the statement of the facts found in the judgment of the High Court, it is perfectly plain that the suit now pending before the First Munsif's Court, Bangalore, is a flagrant misuse of the mercies of the law in receiving plaints. The learned Munsif must remember that if on a meaningful -- not formal -- reading of the plaint it is manifestly vexatious, and meritless, in the sense of not disclosing a clear right to sue, he should exercise his power under Order 7, Rule 11 CPC taking care to see that the ground mentioned therein is fulfilled. And, if clever drafting has created the illusion of a cause of action, nip it in the bud at the first hearing by examining the party searchingly under Order 10, CPC. An activist Judge is the answer to irresponsible law suits....."
6.4 In the case of Church of Christ Charitable Trust and Educational Charitable Society (supra), this Court in paras 13 has observed and held as under:
"13. While scrutinizing the plaint averments, it is the bounden duty of the trial Court to ascertain the materials for cause of action. The cause of action is a bundle of facts which taken with the law applicable to them gives the Page 31 of 41 Downloaded on : Sun Jan 16 23:16:40 IST 2022 C/FA/1547/2020 JUDGMENT DATED: 11/10/2021 Plaintiff the right to relief against the Defendant. Every fact which is necessary for the Plaintiff to prove to enable him to get a decree should be set out in clear terms. It is worthwhile to find out the meaning of the words "cause of action". A cause of action must include some act done by the Defendant since in the absence of such an act no cause of action can possibly accrue."
6.5 In A.B.C. Laminart Pvt. Ltd. v. A.P. Agencies, Salem (supra), this Court explained the meaning of "cause of action" as follows:
"12. A cause of action means every fact, which if traversed, it would be necessary for the plaintiff to prove in order to support his right to a judgment of the court. In other words, it is a bundle of facts which taken with the law applicable to them gives the plaintiff a right to relief against the defendant. It must include some act done by the defendant since in the absence of such an act no cause of action can possibly accrue. It is not limited to the actual infringement of the right sued on but includes all the material facts on which it is founded. It does not comprise evidence necessary to prove such facts, but every fact necessary for the plaintiff to prove to enable him to obtain a decree. Everything which if not proved would give the defendant a right to immediate judgment must be part of the cause of action. But it has no relation whatever to the defence which may be set up by the defendant nor does it depend upon the character of the relief prayed for by the plaintiff."Page 32 of 41 Downloaded on : Sun Jan 16 23:16:40 IST 2022
C/FA/1547/2020 JUDGMENT DATED: 11/10/2021 6.6 In the case of Sopan Sukhdeo Sable (supra) in paras 11 and 12, this Court has observed as under:
"11. In I.T.C. Ltd. v. Debts Recovery Appellate Tribunal [(1998) 2 SCC 70] 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 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 Order 7 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 (supra)."
6.7 In the case of Madanuri Sri Rama Chandra Murthy (supra), this Court has observed and held as under:
"7. The plaint can be rejected under Order 7 Rule 11 if conditions enumerated in the said provision are fulfilled. It is needless to observe that the power under Order 7 Rule 11 CPC can be exercised by the Court at any stage of the suit. The relevant facts which need to be looked into for deciding the application are the averments of the plaint only. If on Page 33 of 41 Downloaded on : Sun Jan 16 23:16:40 IST 2022 C/FA/1547/2020 JUDGMENT DATED: 11/10/2021 an entire and meaningful reading of the plaint, it is found that the suit is manifestly vexatious and meritless in the sense of not disclosing any right to sue, the court should exercise power under Order 7 Rule 11 CPC. Since the power conferred on the Court to terminate civil action at the threshold is drastic, the conditions enumerated under Order 7 Rule 11 CPC to the exercise of power of rejection of plaint have to be strictly adhered to. The averments of the plaint have to be read as a whole to find out whether the averments disclose a cause of action or whether the suit is barred by any law. It is needless to observe that the question as to whether the suit is barred by any law, would always depend upon the facts and circumstances of each case. The averments in the written statement as well as the contentions of the defendant are wholly immaterial while considering the prayer of the defendant for rejection of the plaint.
Even when the allegations made in the plaint are taken to be correct as a whole on their face value, if they show that the suit is barred by any law, or do not disclose cause of action, the application for rejection of plaint can be entertained and the power under Order 7 Rule 11 CPC can be exercised. If clever drafting of the plaint has created the illusion of a cause of action, the court will nip it in the bud at the earliest so that bogus litigation will end at the earlier stage."
6.8 In the case of Ram Singh (supra), this Court has observed and held that when the suit is barred by any law, the plaintiff Page 34 of 41 Downloaded on : Sun Jan 16 23:16:40 IST 2022 C/FA/1547/2020 JUDGMENT DATED: 11/10/2021 cannot be allowed to circumvent that provision by means of clever drafting so as to avoid mention of those circumstances, by which the suit is barred by law of limitation."
Analysis :-
11. Indisputably the appellant and respondents Nos.1 to 4 respectively are sister and brothers. The dispute is with regard to land bearing Survey No.46/6/A on the outskirt of Village :
Bhat of District and Sub-District : Gandhinagar admeasuring 00-37-12 Hector-Are-Sq.Mtrs. The appellant is seeking one fifth share in the suit property. The appellant and respondents entered into a Partition Deed being a registered Partition Deed No.1599 of 1980 dated 8.12.1980 in the presence of confirming parties as stated above. On the basis of said Partition Deed the appellant is seeking one fifth share in the suit property. The appellant and her mother were signatories to the Partition Deed. By the said Partition Deed the absolute share devolve with the respondent No.1. Having become the absolute owner of the suit land the respondent No.1 then transferred the suit land in favour of respondent No.4 by Registered Sale Deed dated 1.1.1981 being Entry No.2 of 1981. The appellant chose not to challenge the said Sale Deed dated 1.1.1981 within a period of three years by invoking Articles 58, 59 and 110 of the Limitation Act. Even if the period of limitation under Article of the Limitation Act would be taken into consideration, the period of limitation of twelve years also Page 35 of 41 Downloaded on : Sun Jan 16 23:16:40 IST 2022 C/FA/1547/2020 JUDGMENT DATED: 11/10/2021 would be till 1.1.1992. The plaintiff instituted the suit in the year 2019 and could be said to be time barred. From the year 1992 to 2019 the suit land has changed hands and being transferred from time to time between the respondent No.4 to respondent No.16.
11.1 It is the case of the appellant that it came to her knowledge only in the year 2019 when the appellant was in need of money and wanted to sell her part of the suit property. The registered Partition Deed bearing No.1599/1980 dated 4.12.1980 has been produced by the appellant alongwith the plaint. The relevant part of the Partition Deed is produced thus (true translation) :-
"Its boundaries are as under.
East:- survey no.45 West:- survey no.43 North:- survey no.44-3 South:- survey no.44-5 The aforementioned property is owned by the Hindu Undivided Family of Gangaram Shakrabhai, Pramukhbhai Shakrabhai, Sureshbhai Shakrabhai and Menaben Wd/o Shakrabhai, ad- measuring 3 Hectare, 81 Are, 90 meter and Kokilaben holds fifth share of Shakrabhai's fifth share of HUF.
15. Gangaram Shakrabhai has the share of 0 Hactare, 91 Are, 65 meter in the aforementioned property. Shri Gangaram Page 36 of 41 Downloaded on : Sun Jan 16 23:16:40 IST 2022 C/FA/1547/2020 JUDGMENT DATED: 11/10/2021 Shakrabhai has demanded for separation of his share from the aforesaid property, hence today partition of this property is carried out and the following land is allotted to Gangaram.
(1) Survey no.46-6 in the outskirt of Baat village of Gandhinagar Taluka and District, ad-measuring 0 Hectare, 55 Are, 7 meter. Its assessment value is Rs.4.25. Its boundaries are as under.
East:- survey no.35 and survey no.46-4 West:- survey no.46-5 acquired for Aerodrome Koba road North:- survey no.46-4 South:- survey no.46-7 (2) Survey no.41-3 in the outskirt of Bhat village of Gandhinagar Taluka and District, ad-measuring 0 Hectare, 31 Are, 81 sq.meter. Its assessment value is Rs.2.75. Its boundaries are as under.
East:- part of survey no.46-4 which is acquired for Aerodrome Koba road West:- survey no.41 North:- survey no.46-1 South:- survey no.46-5 The aforementioned two survey numbers- 46-6 and 46-3 located in the outskirt of Bhaat village of Gandhinagar Taluka and District are allotted to Shri Gangaram Shakrabhai and the land bearing rest of the survey numbers have been allotted to Menaben, minor Pramukhbhai, minor Suryakant and Kokilaben.
Page 37 of 41 Downloaded on : Sun Jan 16 23:16:40 IST 2022C/FA/1547/2020 JUDGMENT DATED: 11/10/2021
16. According to the partition as stated in para-15, land bearing survey numbers- 46-6 and 46-3 located in the outskirt of Bhat village of Gandhinagar Taluka and District are allotted to Shri Gangaram Shakrabhai and he is authorized to sell, mortgage, gift or utilize and no one else will cause hindrance in it. The land bearing other survey numbers at Bhaat village, Taluka and District Gandhinagar are in joint ownership of Pramukhbhai Shakrabhai, Sureshbhai Shakrabhai, Menaben Shakrabhai and Kokilaben and Shri Gangaram Shakrabhai has no share in that land.
17. We, confirming parties state that according to the partition as stated in para-15 of the lands mentioned in para- 14, we do not have any share, right or claim in the properties vide survey no.46-3 and survey no.46-6 in the outskirt of Bhaat village, Taluka and District Gandhinagar, allotted to Gangaram Shakrabhai and the property allotted to Pramukhbhai Shakrabhai and others and they are owners of the respective properties.
Among these lands, some lands are registered in the name of Undivided family in the revenue record and the changes in revenue record have not been carried out even after partition and transfer of the said lands, therefore we have joined as party in this partition deed but we have no right or share in the properties included in partition and we will not claim our right or share from the said properties in the future.
18. Major part is allotted to Menaben Shakrabhai in the Page 38 of 41 Downloaded on : Sun Jan 16 23:16:40 IST 2022 C/FA/1547/2020 JUDGMENT DATED: 11/10/2021 afore partition, its measurements are as under.
Survey number Assessment
44-3 Rs.
44-4 paiki Rs.
41-2 paiki Rs.
214-1 paiki Rs.
1-2 Rs.
46-1 Rs.
Thus, total assessment value of the large part is Rs.24.00. Five times of that value is Rs.120. Therefore, legal stamp of Rs.8.00 is used as ...... of the value of that part as per rules.
We have executed the aforementioned partition deed voluntarily, in a completely sound state of mind and it is accepted to us, our elders and our heirs."
11.2 We keep in mind the ratio laid down in the case of Vinita Sharma vs Rakesh Sharma, (2020) 9 SCC 1, wherein it is held that the daughter's right in co-parcener property under Section 6 as substituted by the Hindu Succession Act (Amendment) Act, 2005 with effect from 9.9.2005 is absolute. It is not at all necessary that the father of the daughter should be living on the date when the amendment came into effect. What is important is 'the right'. While we are in complete agreement with the ratio laid down in the case of Vinita Page 39 of 41 Downloaded on : Sun Jan 16 23:16:40 IST 2022 C/FA/1547/2020 JUDGMENT DATED: 11/10/2021 Sharma (Supra) in our view the appellant herein having signed the partition deed dated 1.1.1981 alongwith her mother, she could be said to have relinquished her share and transferred her part of share in favour of the respondent No.1, the respondent No.1 having become the absolute owner of the suit property it was well within his right to transfer the suit property in favour of the respondent No.4. The decision does not take the case of the appellant any further.
11.3 In view of the undisputed facts that are emerging from the record and in view of the settled legal position as to rejection of plaint in cases of claim hopelessly barred by limitation and such claims cannot be brought into limitation by clever drafting. In the present case it is apparent from the record that the first partition deed and then the sale deeds have been executed in 1981. It is then there are various transactions by way of registered sale-deeds. And merely by citing an instance of 2019 the plaintiff have come before the court to challenge the sale-deeds executed from 1981 to 2019. This is nothing less than a clever piece of drafting so as to bring the suit in limitation which is clearly time barred.
11.4 It is also important to mention that the provisions of Order 7 Rule 11 are required to be invoked in cases such as the present one where the plaintiff try to use the legal machinery to disturb the rights which are well settled in favour of others so that such vexatious claims are thrashed at Page 40 of 41 Downloaded on : Sun Jan 16 23:16:40 IST 2022 C/FA/1547/2020 JUDGMENT DATED: 11/10/2021 the inception.
11.5 In view of above, in our view it cannot be said that any error on fact or any error of law can be said to have been committed by the Court below in rejecting the plaint under Order 7 Rule 11 (d) of the Civil Procedure Code.
11.6 For the foregoing reasons this First Appeal fails and is hereby dismissed.
(J. B. PARDIWALA, J) (VAIBHAVI D. NANAVATI,J) K.K. SAIYED Page 41 of 41 Downloaded on : Sun Jan 16 23:16:40 IST 2022