Gujarat High Court
Patel Dhanjibhai Ambaram vs Navinchandra Vrajlal Ved on 1 October, 2021
Author: Vipul M. Pancholi
Bench: Vipul M. Pancholi
C/CRA/122/2016 JUDGMENT DATED: 01/10/2021
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CIVIL REVISION APPLICATION NO. 122 of 2016
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE VIPUL M. PANCHOLI
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1 Whether Reporters of Local Papers may be allowed No
to see the judgment ?
2 To be referred to the Reporter or not ? No
3 Whether their Lordships wish to see the fair copy No
of the judgment ?
4 Whether this case involves a substantial question No
of law as to the interpretation of the Constitution
of India or any order made thereunder ?
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PATEL DHANJIBHAI AMBARAM
Versus
NAVINCHANDRA VRAJLAL VED & 2 other(s)
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Appearance:
MR SANDEEP N BHATT(190) for the Applicant(s) No. 1
MR H.S. TOLIA ASSISTED BY MR JEET Y RAJYAGURU(8039) for the
Opponent(s) No. 3
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CORAM:HONOURABLE MR. JUSTICE VIPUL M. PANCHOLI
Date : 01/10/2021
ORAL JUDGMENT
1. This Civil Revision Application has been filed by the applicant - original defendant No.3 under Section 115 of the Code of Civil Procedure, 1908 ('the Code' for short) challenging the order dated 07.01.2016 passed by the concerned trial Court below Exh.141 filed by the applicant in Special Civil Suit No.102 of 2011.
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2. Heard Mr.Sandip N. Bhatt, learned advocate for the applicant - defendant No.3 and Mr.H.S. Tolia, learned advocate assisted by Mr.Jeet Y. Rajyaguru, learned advocate for opponent No.3 - original plaintiff.
3. Learned advocate for the applicant submitted that opponent No.3 herein - original plaintiff has instituted Special Civil Suit No.102 of 2011 wherein, in substance, prayer of the plaintiff is to cancel the registered Sale deed dated 14.10.1992 executed by defendant No.2 in favour of defendant No.1. It is also prayed that the Sale Deed dated 02.08.1995 executed by defendant No.1 in favour of defendant No.3 be cancelled. It is also prayed that permanent injunction be granted restraining defendant No.3 tom transferring the land in question by way of sale, mortgage, gift etc. 3.1 It is submitted that during the pendency of the said Suit, original plaintiff submitted an application under Order VI Rule 17 of the Code for the amendment of the plaint. However, the said application came to be dismissed by the trial Court vide order dated 23.03.2012. Against the said order, the original plaintiff preferred Civil Revision Application No.125 of 2012 before this Court. However, the said Revision Application was withdrawn with a view to file a petition under Article 226 of the Constitution of India. Thereafter, the original plaintiff filed Special Civil Application No.7515 of Page 2 of 21 Downloaded on : Sun Jan 16 20:26:18 IST 2022 C/CRA/122/2016 JUDGMENT DATED: 01/10/2021 2012. The said petition came to be dismissed by this Court vide order dated 19.06.2012. Thus, it is contended that the request made by the original plaintiff for amendment was not entertained.
3.2 At this stage, it is submitted that the applicant herein thereafter filed an application Exh.141 under Order VII Rule 11 of the Code and requested to reject the plaint. It is submitted that by way of the impugned order dated 07.01.2016, the trial Court has rejected the said application and, therefore, this Revision Application is filed.
3.3 Mr.Bhatt, learned advocate, mainly contended that the Suit filed by the plaintiff is time-barred. It is submitted that the plaintiff has challenged the Sale Deeds which were executed in the years 1992 as well as 1995 respectively by filing Suit in the year 2008 i.e. Regular Civil Suit No.205 of 2008. Subsequently, the same is renumbered as Special Civil Suit No.102 of 2011. It is further submitted that the Suit is barred by Section 34 of the Specific Relief Act, 1963 ('the Act' for short) as the original plaintiff has not sought for prayer with regard to the possession of` the Suit property. It is pointed out from the record that the plaintiff has filed a Suit only for the purpose of declaration and for cancellation of the Sale Deeds. Thus, when the Suit is barred by law, the trial Court ought to have rejected the plaint of the plaintiff by allowing the application filed by the applicant herein under Order Page 3 of 21 Downloaded on : Sun Jan 16 20:26:18 IST 2022 C/CRA/122/2016 JUDGMENT DATED: 01/10/2021 VII Rule 11 of the Code. At this stage, Mr.Bhatt, learned advocate, has referred the reasoning recorded by the trial Court while rejecting the application filed by the applicant and, thereafter, contended that the trial Court has mainly observed that when the fraud is alleged in the plaint, the issue is required to be examined at the time of trial. It is further observed that the question of limitation is a mix question of law and facts which can be examined at the time of trial. The trial Court has further observed that whether the proviso to Section 34 of the Act will be applicable or not can be examined at the time of trial and by assigning such reasons, the application of the applicant herein has been dismissed.
3.4 Mr.Bhatt, learned advocate, has referred the provisions contained in Section 34 of the Act. He has also placed reliance upon the following decisions:
(1) Emrald Co Operative Housing Society Ltd Vs. Decd. Gulamkadar S/o. Gulam Husain Abdulkadar and Bai Shakarbu and 7 others reported in (2019) 2 GLH 559 (2) Raghwendra Sharan Singh Vs. Ram Prasanna Singh (Dead by Lrs. reported in AIR 2019 SC 1430 (3) Dilboo (Smt) (Dead) By Lrs. and others Vs. Hanraji (Smt) (Dead) and others reported in (2000) 7 SCC 702 Page 4 of 21 Downloaded on : Sun Jan 16 20:26:18 IST 2022 C/CRA/122/2016 JUDGMENT DATED: 01/10/2021 (4) Rajendra Bajoria and others Vs. Hemant Kumar Jalan and others, Order dated 21.09.2021 passed by the Hon'ble Supreme Court in Civil Appeal Nos.5819-5822 of 2021 (5) Emrald Co Operative Housing society Ltd.
Vs. Manguben Thakor Daughter of Ataji Chaturji Thakore & 7 Ors reported in 2017(1) GLR 273 (6) Union of India Vs. Ibrahim Uddin and another reported in (2012) 8 SCC 148 3.5 It is, therefore, urged that the impugned order be quashed and set aside and thereby the plaint of the original plaintiff be dismissed.
4. On the other hand, Mr.H.S. Tolia, learned advocate appearing for opponent No.3 - original plaintiff has opposed this application and has referred the reasoning recorded by the trial Court while rejecting the application filed under Order VII Rule 11 of the Code. It is submitted that the trial Court has not committed any error and, therefore, this Court may not exercise revisional jurisdiction. It is also contended that the averments made in the Suit is required to be read as a whole. It is also contended that there is no pleading in the application filed by the applicant under Order VII Rule 11 of the Code with regard to the delay in filing the Suit. Opportunity is required to be given to the plaintiff during the course of trial to lead Page 5 of 21 Downloaded on : Sun Jan 16 20:26:18 IST 2022 C/CRA/122/2016 JUDGMENT DATED: 01/10/2021 the evidence. It is further submitted that when it is alleged that the Sale Deed is executed by forging the signature and when the fraud is alleged, the said aspect is required to be gone into at the time of trial. It is further submitted that decision upon which reliance is placed by the learned advocate for the applicant would not be applicable to the facts of the present case.
4.1 Mr.Tolia, learned advocate, has thereafter contended that Section 34 of the Act barred the relief and not the Suit. He has placed reliance upon the decision rendered by the Hon'ble Supreme Court in the case of Vigneswara Coop. Housing Society Ltd. Vs. K. Balachandramouli and others reported in (2005) 13 SCC 506. It is, therefore, urged that this Court may not entertain the present application.
5. Having heard learned advocates appearing for the parties and having gone through the material placed on record, it is revealed that Sale Deeds were executed in the years 1992 as well as 1995 respectively. The plaintiff has filed a Suit challenging the said Sale Deeds in the year 2008. It is further revealed that the original plaintiff filed an application under Order VI Rule 17 of the Code for amendment of the plaint. If the said application is carefully seen, it is revealed that by way of an amendment, the plaintiff has specifically prayed that the defendants be directed to handover the physical possession of the Suit property to the plaintiff.
Page 6 of 21 Downloaded on : Sun Jan 16 20:26:18 IST 2022C/CRA/122/2016 JUDGMENT DATED: 01/10/2021 Alternatively, it was prayed that possession of the Suit property be obtained from the defendants through Court and, thereafter, decree be passed in favour of the plaintiff and against the defendants. It is pertinent to note that the said application was not entertained by the trial Court and the order of the trial Court is confirmed by this Court by dismissing the petition filed by the plaintiff. Thus, fact remains that in the Civil Suit which is filed by the plaintiff, he has only prayed for cancellation of the Sale Deeds in question.
6. It is further revealed from the record that after the registration of Sale Deeds, entries were mutated in the revenue record and notice was also served to the plaintiff before the entries were certified. Thus, it can be said that in the plaint, the plaintiff has though averred that he came to know about the sale transactions only in the year 2007 and, thereafter, he obtained a copy and filed the Suit is nothing but a clever drafting. Thus, though allegations of fraud are made, it is nothing but a clever drafting with a view to come out from the period of limitation.
7. In the case of Dilboo (Smt) (Dead) By Lrs. and others Vs. Hanraji (Smt) (Dead) and others (supra), the Hon'ble Supreme Court has held that where transfer is by registered document, the date of registration becomes the date of deemed knowledge. It was further held that in cases where fact could be Page 7 of 21 Downloaded on : Sun Jan 16 20:26:18 IST 2022 C/CRA/122/2016 JUDGMENT DATED: 01/10/2021 discovered by due diligence, plaintiff would be deemed to have the necessary knowledge.
8. In the case of Raghwendra Sharan Singh Vs. Ram Prasanna Singh (Dead by Lrs (supra), the Hon'ble Supreme Court has observed in Paragraph-7 as under:
"7. Applying the law laid down by this Court in the aforesaid decisions on exercise of powers under Order 7 Rule 11 of the CPC to the facts of the case in hand and the averments in the plaint, we are of the opinion that both the Courts below have materially erred in not rejecting the plaint in exercise of powers under Order 7 Rule 11 of the CPC. It is required to be noted that it is not in dispute that the gift deed was executed by the original plaintiff himself along with his brother. The deed of gift was a registered gift deed. The execution of the gift deed is not disputed by the plaintiff. It is the case of the plaintiff that the gift deed was a showy deed of gift and therefore the same is not binding on him. However, it is required to be noted that for approximately 22 years, neither the plaintiff nor his brother (who died on 15.12.2002) claimed at any point of time that the gift deed was showy deed of gift. One of the executants of the gift deed - brother of the plaintiff during his lifetime never claimed that the gift deed was a showy deed of gift. It was the appellant herein - original defendant who filed the suit in the year 2001 for partition and the said suit was filed against his brothers to which the plaintiff was joined as defendant No. 10. It appears that the summon of the suit filed by the defendant being T.S. (Partition) Suit No. 203 of 2001 was served upon the defendant No.10-plaintiff herein in the year 2001 itself. Despite the same, he instituted the present suit in the year 2003. Even from the averments in the plaint, it appears that during these 22 years i.e. the period from 1981 till Page 8 of 21 Downloaded on : Sun Jan 16 20:26:18 IST 2022 C/CRA/122/2016 JUDGMENT DATED: 01/10/2021 2001/2003, the suit property was mortgaged by the appellant herein - original defendant and the mortgage deed was executed by the defendant. Therefore, considering the averments in the plaint and the bundle of facts stated in the plaint, we are of the opinion that by clever drafting the plaintiff has tried to bring the suit within the period of limitation which, otherwise, is barred by law of limitation. Therefore, considering the decisions of this Court in the case of T. Arivandandam (supra) and others, as stated above, and as the suit is clearly barred by law of limitation, the plaint is required to be rejected in exercise of powers under Order 7 Rule 11 of the CPC."
9. In the case of Emrald Co Operative Housing Society Ltd Vs. Decd. Gulamkadar S/o. Gulam Husain Abdulkadar and Bai Shakarbu and 7 others, this Court has observed in Paragraphs-43 and 44 as under:
"43. The law is developed on Order 7 Rule 11 of CPC to the extent that it becomes rather a duty of the Court to invoke Order 7 Rule 11 and not to permit illusory cause of action to be precipitated any further and in that context, the observations which have been made by yet another Division Bench of this Court reported in 1998(2) G.L.H. 823 in the case of Maharaj Shri Manvendrasinhji Ranjitsinhji Jadeja Vs. Rajmata Vijaykunverba wd/o Late Maharaja Mahendrasinhji contained in paragraph Nos.13,14 and 15 deserve to be reproduced hereinafter:
"13. Having noticed brief summary of the plaint and prayers earlier, it would be relevant to refer to the provisions of Order 7, R.11(a) of the CPC and the scope thereof. Order 7, R.11(a) of the CPC provides that the plaint shall be rejected in case where it does not disclose a cause of action. Order 7, R.11(a) of the CPC is Page 9 of 21 Downloaded on : Sun Jan 16 20:26:18 IST 2022 C/CRA/122/2016 JUDGMENT DATED: 01/10/2021 mandatory and if it is found that the plaint does not disclose a cause of action, the Court has no option but to reject the plaint. To find out whether a plaint discloses a cause of action or not, the Court has to look only to the averments made in the plaint. When a plaint is based on a document filed along with the plaint, it can, however, be considered to ascertain if plaint discloses any cause of action. Cause of action means every fact which it would be necessary for the plaintiff to prove, if traversed, in order to support his right to judgment. The words "cause of action" mean the whole bundle of material facts which are necessary for the plaintiff to prove in order to entitle him to the reliefs claimed in the suit. What is to be done by the Court at the stage of deciding as to whether the plaint discloses any cause of action or not is to find out from the allegation of the plaint itself as to whether a bogus, wholly vexatious or frivolous litigation is sought to be initiated under the garb of ingenuous drafting of the plaint or not because it is the duty of the Court to guard against the mischief of a litigant misusing the process of court by entering into a false litigation merely for the purpose of harassing the other party and to nip in the bud the litigation which is sham and shabby in character. In order to find out whether the plaint discloses a cause of action or not, the averments made in the plaint and documents annexed thereto should be scrutinised meaningfully and if on such scrutiny it is found that the plaint does not disclose cause of action, it has got to be rejected in view of the provisions of Order 7, R.11(a) of the CPC. When it is said that the Court should take into consideration the averments made in the plaint for the purpose of deciding the question whether the averments made in the plaint disclose cause of action or not, it Page 10 of 21 Downloaded on : Sun Jan 16 20:26:18 IST 2022 C/CRA/122/2016 JUDGMENT DATED: 01/10/2021 does not mean that the Court is precluded from applying the statutory provisions or case-law to the averments made in the plaint. If an assertion made in the plaint is contrary to statutory law or case-law, it cannot be considered as disclosing cause of action. In ITC Ltd. (supra), bank had filed suit against the appellant and others and claimed relief for a sum of Rs.52,59,639-66 ps. After the suit was filed, it was transferred to the Debt Recovery Tribunal. Before the Tribunal, an application was filed by the appellant under Order 7, R.11 of the CPC for rejecting the plaint, so far as appellant was concerned, on the ground that no valid cause of action had been shown against the appellant.
That application was rejected by the Tribunal. Against the said order, an appeal was filed before the Debts Recovery Appellate Tribunal. The appeal was dismissed in limine. Thereupon a writ petition was filed by the appellant, which was dismissed holding that the question should be decided at the trial. Against that judgment, the appellant had filed an appeal before the Division Bench of the High Court, which was also dismissed. The matter was thereafter carried before the Supreme Court. After taking into consideration the decided cases on the point whether there was fraudulent movement of goods under which letter of credit was obtained which in turn entitled the bank to file the suit, the Supreme Court held that that point was already decided by decision of the Supreme Court in U.P. Co-operative Federation's case and therefore the allegation of non-supply of goods by the sellers to the buyers did not by itself amount, in law, to a plea of "fraud" as understood in this branch of the law and hence by merely characterising alleged non- movement of goods as "fraud", the bank was Page 11 of 21 Downloaded on : Sun Jan 16 20:26:18 IST 2022 C/CRA/122/2016 JUDGMENT DATED: 01/10/2021 not entitled to claim that there was a cause of action based on fraud or misrepresentation. While allowing the appeal, what is emphasised by the Supreme Court is that the question 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, R.11 of the CPC has to be decided with reference to averments made in the plaint and clever drafting creating illusions of cause of action are not permitted in law and a clear right to sue should be shown in the plaint. In view of this decision of the Supreme Court, it is evident that if something purely illusory has been stated with a view to get out of Order 7, R.11 of the CPC by resorting to clever drafting, it cannot be said that the plaint discloses a cause of action and if a clear right to sue is not shown in the plaint, it is liable to be rejected.
14. In the light of scope of Order 7, R.11(a) of the CPC, we would now proceed to examine different submissions made on behalf of the appellant. The submission that the plaint was presented on December 26,1978, whereas issues for determination were framed by the learned Judge on July 21, 1981 and therefore the application filed by the respondent under Order 7, R.11(a) of the CPC on June 26, 1996 should not have been entertained at such a long distance of time, has no substance. As noted earlier, the provisions of Order 7, R.11(a) of the Code of Civil Procedure are mandatory in nature. It is the duty of the Court to reject the plaint which does not disclose cause of action. If a plaint can be rejected at threshold of the proceedings, we do not see any reason as to why it cannot be rejected at any subsequent stage of the proceedings. Even if after framing of issues, the basic defect in the plaint persists, namely, absence of cause Page 12 of 21 Downloaded on : Sun Jan 16 20:26:18 IST 2022 C/CRA/122/2016 JUDGMENT DATED: 01/10/2021 of action, it is always open to the contesting defendants to insist that the plaint be rejected under Order 7, R.11 of the CPC and the Court would be acting within its jurisdiction in considering such a plea. Order 7, R.11 of the CPC does not place any restriction or limitation on the exercise of the court's power. It does not either expressly or by necessary implication provide that power under Order 7, R.11 of the CPC should be exercised at a particular stage only. In the view we are taking, we are fortified by the judgment of the Supreme Court rendered in the case of ITC Ltd. (supra). Therein, the suit was filed by the Bank in the year 1985. In 1995, it was transferred to Debt Recovery Tribunal and thereafter an application was filed by the appellant under the provisions of Order 7, R.11 of the CPC for rejection of the plaint as not disclosing any cause of action against the appellant. The application filed by the appellant was rejected not only by the Tribunal and Appellate Tribunal, but also by the High Court. When the matter reached before the Supreme Court in the year 1997, it was contended that the power under Order 7, R.11 of the CPC should not be exercised after such a long lapse of time, more particularly when issues were framed. That plea has been negatived by the Supreme Court in following terms:-
"13. We may state that in the context of Order 7 Rule 11 CPC, a contention that once issues have been framed, the matter has necessarily to go to trial has been clearly rejected by this Court in Azhar Hussain v. Rajiv Gandhi (SCC p.324) as follows: (SCC para 12) "In substance, the argument is that the court must proceed with the trial, record the evidence, and only after the trial... is Page 13 of 21 Downloaded on : Sun Jan 16 20:26:18 IST 2022 C/CRA/122/2016 JUDGMENT DATED: 01/10/2021 concluded that the powers under the Code of Civil Procedure for dealing appropriately with the defective petition which does not disclose cause of action should be exercised. With respect to the learned counsel, it is an argument which is difficult to comprehend. The whole purpose of conferment of such powers 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..."
The abovesaid judgment which related to an election petition is clearly applicable to suits also and was followed in Samar Singh v. Kedar Nath. We therefore hold that the fact that issues have been framed in the suit cannot come in the way of consideration of this application filed by the appellant under Order 7 Rule 11 CPC."
In view of settled legal position, plea that powers under Order 7, R.11(a) of the CPC should not have been exercised after framing of issue cannot be upheld and is hereby rejected.
15. Placing reliance on the observations made in para 16 of the impugned judgment, it was argued by the learned Advocate General that the trial Court has taken into consideration the defence raised by the respondent in the written statement and as the application filed under Order 7, R.11(a) of the CPC is not decided on well- settled principle, namely, that only averments made in the plaint should be looked into, the impugned order should be set aside. In paragraph 16 of the impugned judgment, it is held by the learned Judge that the appellant is a member of the branch of family of Harbhamji and on the death of Mayurdhvajsinhji, the hurdle of applicability of Section 4 of the Hindu Page 14 of 21 Downloaded on : Sun Jan 16 20:26:18 IST 2022 C/CRA/122/2016 JUDGMENT DATED: 01/10/2021 Succession Act was removed and thereafter the family of deceased Mayurdhvajsinhji was a coparcenery Hindu family of which the appellant is not a member. It is further held therein that under Section 8 of the Hindu Succession Act, the original defendant is entitled to inherit properties of deceased Mayurdhvajsinhji, being Class I heir as per Schedule. On close scrutiny of the plaint and the written statement, we find that the learned Judge while deciding the present application has not taken into consideration the different pleas raised in the written statement. The learned Judge was aware of the limitations placed on the power of the Court while deciding an application filed under Order 7, R.11(a) of the Code of Civil Procedure, namely, that averments made in plaint and documents produced along with the plaint can be looked into to find out whether the plaint discloses a cause of action or not. This is quite apparent from what is held by the learned Judge in paragraphs 5 and 7 of the impugned judgment. In paragraph 9 of the plaint, the appellant has averred that deceased Mayurdhvajsinh had died intestate and had no right to make any will and his four sisters and two step- mothers have no right at law to claim any of his properties, rights or interest. It is also stated in the said paragraph that the defendant claims to be the heir of deceased Mayurdhvajsinhji as his mother under the Hindu Succession Act, 1956 and as such she claims to have ownership and be in possession of the estate of the deceased. Again, in paragraph 23A of the plaint, it is asserted that the estate left by deceased Mayurdhvajsinhji was impartible and as custom of primogeniture was consistently followed both before and after former ancestor Thakore Shri Rawaji, it was not competent to any holder thereof to make any valid will in respect of either the whole or any part of the said estate. It is Page 15 of 21 Downloaded on : Sun Jan 16 20:26:18 IST 2022 C/CRA/122/2016 JUDGMENT DATED: 01/10/2021 further emphasised in the said paragraph that if any will is found to have been made either by late Lakhdhirji or Mahendrasinhji, the same is not binding on the plaintiff and the properties affected thereby continue to form part and parcel of the impartible estate. We find that in the light of the assertions made in these paragraphs, findings have been recorded by the learned Judge in paragraph 16 of the impugned judgment. While recording findings in paragraph 16, the learned Judge has taken into consideration the averments and assertions made in the plaint. Therefore, it is not correct to say that the learned Judge while deciding the application filed under Order 7, R.11(a) of the CPC has taken into account the defence raised by the respondent in the written statement. The learned Judge has not decided any legal question raised in the written statement and therefore ratio laid down in case of Ranjeet Mal (supra) does not apply to the facts of the case. Under the circumstances, the impugned order cannot be assailed on the ground that while deciding application in question, the trial Court took into consideration the different defenses raised by the respondent in her written statement."
44. From aforesaid proposition of law which has been pointed out by the petitioner's side, it becomes clear that here is the proceeding launched by the original plaintiffs not only after unreasonable period of approximately 30 years but there is a non-compliance of section 167 of Cooperative Societies Act and additionally, cause of action is also illusory and the entire plaint is found to be filed with an attempt of suppressing material fact and sounding an impression that it is nothing but tantamount to be an abuse of the process of law and is merely a speculative litigation. Hence, this is a fit case in which the learned trial Judge ought to have invoked and exercised power Page 16 of 21 Downloaded on : Sun Jan 16 20:26:18 IST 2022 C/CRA/122/2016 JUDGMENT DATED: 01/10/2021 under Order 7 Rule 11 of CPC. However, be that as it may, since an error is committed in not exercising jurisdiction, which is otherwise vested in it, the Court is of the considered opinion that case is made out by the revision petitioner."
10. At this stage, this Court would like to refer the provisions contained in Section 34 of the Act, which provides as under:
"34. Discretion of court as to declaration of status or right.--Any person entitled to any legal character, or to any right as to any property, may institute a suit against any person denying, or interested to deny, his title to such character or right, and the court may in its discretion make therein a declaration that he is so entitled, and the plaintiff need not in such suit ask for any further relief: Provided that no court shall make any such declaration where the plaintiff, being able to seek further relief than a mere declaration of title, omits to do so. Explanation.--A trustee of property is a "person interested to deny" a title adverse to the title of some one who is not in existence, and whom, if in existence, he would be a trustee."
11. In the case of Union of India Vs. Ibrahim Uddin and another (supra), the Hon'ble supreme Court has observed in Paragraphs-55 to 57 as under:
"55. The Section provides that courts have discretion as to declaration of status or right, however, it carves out an exception that a court shall not make any such declaration of status or right where the complainant, being able to seek further relief than a mere declaration of title, omits to do so.Page 17 of 21 Downloaded on : Sun Jan 16 20:26:18 IST 2022
C/CRA/122/2016 JUDGMENT DATED: 01/10/2021
56. In Ram Saran & Anr. v. Smt. Ganga Devi, AIR 1972 SC 2685, this Court had categorically held that the suit seeking for declaration of title of ownership but where possession is not sought, is hit by the proviso of Section 34 of Specific Relief Act, 1963 (hereinafter called 'Specific Relief Act') and, thus, not maintainable.
56. In Vinay Krishna v. Keshav Chandra & Anr., AIR 1993 SC 957, this Court dealt with a similar issue where the plaintiff was not in exclusive possession of property and had filed a suit seeking declaration of title of ownership. Similar view has been reiterated observing that the suit was not maintainable, if barred by the proviso to Section 34 of the Specific Relief Act. (See also: Gian Kaur v. Raghubir Singh, (2011) 4 SCC 567).
46. In view of above, the law becomes crystal clear that it is not permissible to claim the relief of declaration without seeking consequential relief."
12. In the case of Vigneswara Coop. Housing Society Ltd. Vs. K. Balachandramouli and others (supra), decision upon which reliance is placed by learned advocate for opponent No.3 - original plaintiff, the Hon'ble Supreme Court has observed in Paragraph-4 as under:
"4. This appeal is against an order dated 4-10- 2001 wherein the Division bench of the Andrha Pradesh High Court has confirmed an order of the IIIrd Bench of the Additional Chief Judge, City Civil Court at Hyderabad passed in a suit for specific performance. The IIIrd Additional Chief Judge has rejected the plaint under Order 7 Rule 11 of the Code of Civil Procedure. The rejection of the plaint is on the grounds (a) that the land was notified to be acquired. By the plaint Page 18 of 21 Downloaded on : Sun Jan 16 20:26:18 IST 2022 C/CRA/122/2016 JUDGMENT DATED: 01/10/2021 itself shows that the acquisition proceedings have been dropped; (b) that no permission under the Urban land (Ceiling and Regulation) Act had been acquired and that the application for such permission had been rejected. In the plaint it has been stated that the permission was not granted as the respondent (the defendant) withdrew his application. If the petitioners succeed in their suit they could apply again or they may be able to challenge the rejection even now. Thus, in our view, at the highest this could be a ground on which relief may not be ultimately granted to the plaintiff in the suit but at this stage the plaint cannot be rejected on this ground. It has finally been held that as there is no alternate prayer for damages and for refund therefore the plaint stands rejected. Even if the refund cannot ultimately be granted, a rejection of the plaint can only be on the four grounds made under Order 7 Rule 11. In our view, none of the grounds set out in Order 7 Rule 11 have been made out."
13. Thus, from the aforesaid decisions rendered by this Court as well as by the Hon'ble Supreme Court, it can be said that when the transfer is by registered document, date of registration becomes deemed knowledge and in cases where fact could be discovered by due diligence, plaintiff would be deemed to have the necessary knowledge. In the fact of the present case, it is not in dispute that the Sale Deeds dated 14.10.1992 and 02.08.1995 are duly registered and, therefore, date of registration becomes date of deemed knowledge. The plaintiff has filed Suit in the year 2008. However, it is pertinent to note that the plaintiff has alleged fraud and stated that he came to know about the registration of the Sale deeds only in the year 2007. However, as Page 19 of 21 Downloaded on : Sun Jan 16 20:26:18 IST 2022 C/CRA/122/2016 JUDGMENT DATED: 01/10/2021 observed by the Hon'ble Supreme Court and this Court, in the facts of the present case, by clever drafting, the plaintiff has tried to bring the Suit within the period of limitation which is otherwise barred by law of limitation.
14. Thus, in the facts of the present case, though in the application, the present applicant - original defendant had not stated in the application filed under Order VII Rule 11 of the Code before the trial Court about the delay in filing the Suit, at the time of hearing of the said application, submissions were canvassed on behalf of the present applicant.
15. In the case of Union of India Vs. Ibrahim Uddin and another (supra), the Hon'ble Supreme Court has considered two earlier decisions and, thereafter, held that Suit seeking for declaration for title of ownership but where possession is not sought is hit by Section 34 of the Act and the Suit is not maintainable if barred by proviso to Section 34 of the Act.
In the facts of the present case, it is not in dispute that the plaintiff is not in possession of the Suit property. Once again, it is pertinent to note that the amendment was submitted by the plaintiff which was not granted and this Court has also dismissed the petition filed by the plaintiff. Thus, in the facts of the present case, this Court is of the view that Page 20 of 21 Downloaded on : Sun Jan 16 20:26:18 IST 2022 C/CRA/122/2016 JUDGMENT DATED: 01/10/2021 the Suit filed by the plaintiff is not maintainable.
16. In view of the aforesaid discussion and keeping in mind the aforesaid decisions, the impugned order dated 07.01.2016 passed by the concerned trial Court below Exh.141 filed by the applicant in Special Civil Suit No.102 of 2011 is required to be quashed and set aside. It is accordingly quashed and set aside. Consequently, application filed by the applicant under Order VII Rule 11 at Exh.141 in Special Civil Suit No.102 of 2011 is allowed. The plaint in Special Civil Suit No.102 of 2011 is rejected.
17. Accordingly, the present Revision Application is allowed. Rule is made absolute, accordingly.
(VIPUL M. PANCHOLI, J) piyush Page 21 of 21 Downloaded on : Sun Jan 16 20:26:18 IST 2022