Rajasthan High Court - Jaipur
Late Dahnpat Kanwar And Ors vs Smt Shanti And Ors on 21 May, 2019
Author: Veerendr Singh Siradhana
Bench: Veerendr Singh Siradhana
HIGH COURT OF JUDICATURE FOR RAJASTHAN
BENCH AT JAIPUR
S.B. Civil Writ Petition No. 9794/2017
1. Late. Dahnpat Kanwar, Wife Of Late. Shri Bhagwandas Ji
Gothi, Daughter Of Late. Buddh Singh Mehta, Resident Of
Dhaan Mandi Purana Shehar Kishangarh, Tehsil
Kishangarh, District Ajmer Through Lrs
1/1. Mahendra Kumar, Son Of Late. Shri Bhagwandas Ji
Gothi, Caste Jain, Resident Of Near Lakshmi Temple,
Bharatpur, Tehsil And District Bharatpur.
1/2 Smt. Bela, Daughter Of Late. Shri Bhagwandas Ji
Gothi, Wife Of Kamal, Caste Jain, Resident Jawahar
Brothers, 169 Ramganj Market, Kota.
1/3. Smt. Seela, Daughter Of Late. Bhagwandas Ji Gothi,
Wife Of Late. Shri Rameshchand Bhandari, Through
1/3/1. Dharmesh Bhandari, Son Of Late Smt. Seela
Mother And Late Shri, Rameshchand Bhandari Father
1/3/2. Pooja Bhandari, Daughter Of Late Smt. Seela
Mother And Late Shri. Rameshchand Bhandari Father,
Both By Caste Jain, Resident Of S./1 A.c. Scheme,
Bhawani Singh Road, Jaipur.
2. Smt. Beena, Daughter Of Late. Bhagwandas Ji Gothi, Wife
Of Shri Abhay Singh Lodha, Caste Jain, Resident Of 140
Adarsh Nagar, Ajmer.
----Petitioners
Versus
1. Smt. Shanti, Wife Of Late Lal, Caste Teli, Resident Of
Madanganj Kishangarh, Tehsil Kishangarh, District Ajmer.
2. Jagdish, Son Of Shoram, Caste Kumhar, Resident Of
Madanganj Kishangarh, Tehsil Kishangarh, District Ajmer.
3. Government Of Rajasthan Through Tehsildar, Kishangarh,
District Ajmer.
4. Late. Nand Kumar Singh, Son Of Late. Buddh Singh
Mahnot Through Lrs
4/1. Chandrakala, Wife Of Late. Nand Kumar Singh
Mehta.
4/2. Dilip Kumar, Son Of Late. Nand Kumar Mehta
4/3. Sunil Kumar, Son Of Nand Kumar Mehta.
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4/4. Lalit Kumar, Son Of Nand Kumar Mehta.
4/5. Seema, Daughter Of Late, Nand Kumar Singh Mehta.
4/6 Sangeeta, Daughter Of Late Nand Kumar Singh
Mehta.
4/7. Sharmila, Daughter Of Late. Nnand Kumar Singh
Mehta, All Resident Of Dhaanmandi, Purana Shehar,
Kishangarh, Tehsil Kishangarh, District Ajmer.
5. Late. Narayan, Son Of Kalu, Through Lrs.
5/1. Smt. Vidhyadevi, Wife Of Late. Narayan.
5/2. Panchuram, Son Of Late. Narayan.
5/3. Tarachand, Son Of Late. Narayan.
5/4. Poonam, Daughter Of Late. Narayan.
5/5. Geeta, Daughter Of Late. Narayan.
5/6. Tulsi, Daughter Of Late. Narayan.
5/7. Gyarsi, Daughter Of Late. Narayan.
5/8. Lali, Daughter Of Late. Narayan.
All By Caste Teli, Resident Of Ramner Road, Madanganj-
Kishangarh, District Ajmer.
6. Jagdish Prasad, Son Of Chotulal
7. Lakshminarayan, Son Of Chotulal
8. Ghanshyam, Son Of Chotulal
9. Rameshchand, Son Of Chotulal.
All By Caste Teli, Resident Of Teli Mohalla, Madanganj-
Kishangarh, District Ajmer.
10. Lakshmichand, Son Of Kalu Teli, Resident Of Ramner
Road, Madanganj-Kishangarh.
11. Late. Indrachand, Son Of Kalu Through Lrs.
11/1. Munni Devi, Wife Of Late. Indrachand.
11/2. Naath, Son Of Late. Indrachand.
11/3. Chotu, Son Of Late. Indrachand.
11/4. Kamla, Daughter Of Late. Indrachand, Wife Of
Jagdish Prasad.
11/5. Raju, Daughter Of Late. Indrachand, Wife Of
Kedarmal All By Caste Teli, Resident Of Roopangarh Road,
Near Chungi, Madanganj-Kishangarh, District Ajmer.
----Respondents
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For Petitioner(s) : Mr. Rajat Ranjan
For Respondent(s) : Mr. R.K. Agarwal, Sr. Counsel, with
Ms. Sunita Pareek, Mr. Akshat
Choudhary
HON'BLE MR. JUSTICE VEERENDR SINGH SIRADHANA Order 21/05/2019 Legal representatives of Late Dhanpat Kanwar, plaintiff/petitioner, aggrieved of the order dated 26 th May, 2014, made by Sub Divisional Magistrate, Kishangarh, District Ajmer, confirmed by the Revenue Appellate Authority, Ajmer vide order dated 15th October, 2014 and order dated 31 st May, 2017, made by the Board of Revenue for Rajasthan, Ajmer, declining the appeal; have approached this Court praying for the following relief(s):
"1. By way of writ, order or directions the Orders dated 26.5.2014 PASSED BY, SDM (KISHANGARH AJMER; THE ORDER DATED 15.10.2014 PASSED BY THE REVENUE APPELLATE AUTHORITY, AJMER AND THE ORDER DATED 31.5.2017 PASSED BY THE BOARD OF REVENUE, AJMER may kindly be quashed and set aside.
2. Any other appropriate order or directions which this Hon'ble Court may deem just and proper in the facts and circumstances of the case may also be passed in favor of the petitioner.
3. Cost of the writ petition may also be passed in favor of the petitioner."
2. Briefly, the essential skeletal material facts are that the plaintiff/petitioner (Dhanpat Kanwar), instituted a suit for (Downloaded on 29/06/2019 at 02:55:48 AM) possession before the Court of Sub Divisional Magistrate, Kishangarh, District Ajmer, pleading that her father late Shri Buddh Singh Mahajan died around year 1950. He was survived by his widow late Sirah Kanwar, minor son Nand Kumar Singh and by her (Late Dhanpat Kanwar). It is pleaded case of the petitioner- plaintiff that late Buddh Singh Mahajan owned Jagir land and after resumption of Jagir, he was declared Khatedar of land measuring about 70 bighas and 18 biswas covered under Khasra No.578, 584, 585 and 586. Sirah Kanwar w/o late Buddh Singh Mahajan died on 5th January, 1992. According to the petitioner-plaintiff, she being daughter, is entitled to her share in Buddh Singh's property. For the revenue officers, by mistake, recorded the entire land of late Shri Buddh Singh Mahajan in the name of Nand Kumar Singh (Son) whereas name of Sirah Kanwar w/o of late Shri Buddh Singh Mahajan was not recorded in the revenue records. Under the circumstances aforesaid, the plaintiff-petitioner was deprived of her rightful share in the property. Further, Nand Kumar Singh, entered into unregistered agreement for sale dated 27 th July, 1960 of 25 bighas and 10 biswas of the land involved herein, in favour of one Lalu Teli and his son Lala Teli for a consideration of Rs. 363/- (Rupees Three Hundred Sixty Three). The possession of land is now with legal representatives of Lala Teli while in the revenue records it is in Khatedari of son of Lalu Teli, however, both of them have expired. Another piece of land measuring 45 bighas of land out of Buddh Singh Mahajan's estate was sold to one Narayan son of Kalu Teli for a sale consideration of Rs. 637/- (Rupees six hundred thirty seven) by an unregistered agreement. The gram Panchayat had also sanctioned mutation No.37, in (Downloaded on 29/06/2019 at 02:55:48 AM) favour of Narayan S/o Kalu Teli. According to plaintiff-petitioner both the mutations have been made on the basis of unregistered instruments of sale, and therefore, mutations are invalid. The plaintiff-petitioner, therefore, prayed for mutation opened in favour of Nand Kumar Singh and Sirah Kanwar (legal representatives of late Buddh Singh Mahajan) indicating equal share to each of them. Prayer was also addressed to cancel the mutation No.37 and 43, sanctioned by Gram Panchayat on the basis of unregistered instruments for sale. Defendant-respondents No. 6 to 9, filed an application under Order 7 Rule 11 read with Section 151 CPC, resisting the maintainability of the plaint for the defendant-respondents are in possession of the suit property for more than 55 years and the subject land involved herein has changed several hands and those transfers have also been reflected in the revenue records. Further, the suit instituted by the plaintiff-petitioner being barred by limitation. Moreover, sale could not only be cancelled by Civil Court and no cause of action accrued in favour of the plaintiff-petitioner. Allowing the application under Order 7 Rule 11 read with Section 151 CPC, the Sub Divisional Magistrate, Kishangarh, District Ajmer, dismissed the revenue suit vide impugned order dated 26th May, 2014, which has been confirmed in appeal by the Revenue Appellate Authority, Ajmer, vide order dated 15th October, 2014. Further, an appeal instituted under Section 224 of the Land Revenue Act, 1955 (for short, 'the Act of 1955'), has also been declined by the Board of Revenue for Rajasthan, Ajmer vide order dated 31 st May, 2017, of which the petitioners are aggrieved of.
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3. Learned counsel for the petitioners, Mr. Rajat Ranjan, reiterating the pleaded facts and grounds of the writ application, vehemently argued that the revenue suit was instituted in the year 2003. It is also not disputed that in the year 1950, Hindu Succession Act, 1956 (for short, 'the Act of 1956'), had no application. However, plaintiff-petitioner was entitled to the subject land involved herein under THE HINDU WOMEN'S RIGHTS TO PROPERTY ACT, 1937 (for short, 'the Act of 1937'), which contemplates that when a Hindu dies intestate leaving separate property, his widow, shall, subject to the provisions of sub-section (3) of section 3 of the Act of 1937, will be entitled in respect of property in respect of which her husband dies intestate to the same share as a son. Hence, late Sirah Kanwar was entitled to equal share in the subject land involved herein as the son (Nand Kumar Singh). Therefore, the plaintiff-petitioner, sister of Nand Kumar Singh; is also entitled to share in the property. Learned counsel further stated that though such a plea, on the basis of section 3 of the Act of 1937, was not raised before the authorities below; however, the plea being pure legal question of law can be raised at any stage.
4. Learned counsel also pointed out that the provisions of Limitation Act, 1963 (for short, `Act of 1963'), are not attracted. That apart, even if, the Act of 1963, has application; the question of limitation being a mixed question of facts and law, the Courts below fell in serious error while declining the claim of the plaintiff-petitioner while sustaining the application under Order 7 Rule 11 read with section 151 CPC. Further, the Court of Sub- (Downloaded on 29/06/2019 at 02:55:48 AM) Divisional Magistrate, Kishangarh, District Ajmer, recorded finding of mala-fide in institution of the suit proceedings, in absence of any pleadings to that effect. Hence, the matter calls for interference by this Court in exercise of writ jurisdiction. In order to buttress his arguments, learned counsel has relied upon the opinion of a Coordinate Bench of this Court in the case of Ram Pratap Vs. State of Raj. & ors.:SBCWP No. 15209/2016, at Principal Seat, Jodhpur, decided on 10th January, 2017, adjudication in the case of Shri Jagannath Waman Undre Vs. Smt. Yamunabai Sitaram Kadam: Second Appeal No.126/2018, decided by the High Court of Bombay, on 1 st April, 2019; and, opinion in the case of Subbalakshmi Ammal Vs.Ramalakshmi Ammal and ors: AIR 1976 Madras 76.
5. Per contra: Mr. R.K. Agarwal, learned Senior Counsel, while supporting the impugned orders and conclusions arrived at by the revenue Courts, vociferously argued that in exercise of writ jurisdiction under Article 227 of the Constitution of India, the Court has only to consider the jurisdictional error. For there is no jurisdictional error committed by the Courts below; the writ application merits rejection on that count alone.
6. Learned senior counsel further pointed out that the provisions of the Act of 1963, are very much attracted to the factual matrix of the case at hand and have been rightly applied. That apart, application to reject the plaint, even if the plaint is not strictly barred by provisions of Order 7 Rule 11 CPC, the same can be rejected under Section 151 CPC, in case the suit is (Downloaded on 29/06/2019 at 02:55:48 AM) found to be frivolous and vexatious and such proceedings must be nipped in the bud at the earliest, as has been held by a Coordinate Bench of this Court in the case of Annant Pal Singh Rajput Vs. Sumer Singh Rajpur and Anr.: 2017(1) DNJ (Raj.) 1.
7. Learned senior counsel referring to the opinion of the Apex Court of the land in the case of Raghwendra Sharan Singh V. Ram Prasanna Singh (Dead) by Lrs.: 2013 AIR CC 1430, pointed out that suit for declaration instituted after more than 22 years of execution of a registered gift deed, was held to be clearly barred by limitation under Article 59 of the Limitation Act of 1963. Further, averments in plaint cleverly drafted to bring suit within period of limitation; even then, such a plaint is liable to be rejected. Reliance is also placed on the opinions in the case of Lachhman Singh (deceased) through Legal Representatives and Ors. Vs. Hazara Singh (deceased) through Legal Representatives and Ors.:(2008) 5 SCC 444, Ramiah Vs. N. Narayana Reddy (Dead) By LRs.: (2004) 7 SCC 541, Hardesh Ores (P) Ltd. Vs. Hade and Company: (2007) 5 SCC 614, P.K. Ramchandran Vs. State of Kerala and Anr.:(1997) 7 SCC 556, Basawaraj and Anr. Vs. Special Land Acquisition Officer:
(2013) 14 SCC 81, Board of Trustees of Port of Kandla Vs. Hargovind Jasraj and Anr.:(2013) 3 SCC 182, Venkatanatha Chary Vs. Nalla Raji Reddy:(2016) 15 SCC 654, Executive Officer, Arulmigu Chokkanatha Swamy Koil Trust, Virudhunagar Vs. Chandran and ors.:(2017) 3 SCC 702 and Md. Noorul Hoda Vs. Bibi Raifunnisa and Ors.:(1996) 7 SCC
767. (Downloaded on 29/06/2019 at 02:55:48 AM)
8. I have heard the learned counsel for the parties and with their assistance perused the materials available on record so also gave my thoughtful consideration to the rival submissions at Bar.
9. Indisputably, plaintiff-petitioner instituted a suit for possession before the Court of Sub Divisional Magistrate, Kishangarh, District Ajmer, in the year 2003. It is also not in dispute that father of the plaintiff-petitioner late Shri Buddh Singh Mahajan died somewhere around the year 1950, who was survived by his widow Sirah Kanwar and a minor Son Nand Kumar Singh. Late Buddh Singh owned Jagir land and after resumption of Jagir, his name was indicated as Khatedar of land, measuring about 70 bighas and 18 biswas covered under Khasra No.578, 584, 585 and 586. Sirah Kanwar w/o late Buddh Singh Mahajan died on 5th January, 1992. Sirah Kanwar, never raised any grievance all along until her death for entry of her name as Khatedar with reference to the subject land involved herein. Petitioner-plaintiff staked her claim being daughter of late Sirah Kanwar and late Buddh Singh, by institution of revenue suit only in the year 2003, while the subject land involved herein changed several hands. The fact that unregistered agreement for sale executed in the year 1960, was very much in the knowledge of the plaintiff-petitioner, but the suit proceedings were instituted only after a lapse of about 53 years, with a prayer to cancel the mutation No.37 and 43, sanctioned by Gram Panchayat on the basis of unregistered instruments for sale.
10. The prayer clause of the suit instituted by the plaintiff- petitioner would reflect that the plaintiff-petitioner has neither (Downloaded on 29/06/2019 at 02:55:48 AM) prayed for any declaration nor has disclosed the cause of action. But, in fact, the suit instituted by the plaintiff-petitioner is for possession and such a prayer is not cleverly prayed. For in that case, the suit would be clearly barred by limitation.
11. Be that as it may, if on consideration of the pleadings of the plaint, it is found that a suit is barred by limitation, the same is liable to be rejected in exercise of powers under Order 7 Rule 11(d) CPC. At this juncture, it will be profitable to take note of the text of period of limitation prescribed under Article 56 to 59 of the Limitation Act, 1963, which reads thus:
Description of suit period of limitation Time from which period begins to run PART III-SUITS RELATING TO DECLARATIONS To declare the forgery of an When the issue or registration 56 Three instrument issued or becomes known to the plaintiff.
registered. years
57
To obtain a declaration that an Three
When the alleged adoption
alleged adoption is invalid, or becomes known to the plaintiff.
never, in fact, took place. years
To obtain any other declaration. When the right to sue first
58 Three
accrues.
years
PART IV - SUITS RELATING TO DECREES AND INSTRUMENTS To cancel or set aside an When the facts entitling the
59. Three instrument or decree or for the plaintiff to have the instrument rescission of a contract. years or decree cancelled or set aside or the contract rescinded first becomes known to him.
12. From a glance of the limitation as reflected from the statutory provisions of the Act of 1963, it is evident that the claim of the plaintiff-petitioner was clearly barred by limitation. And even the reasonable time as regards limitation would not be (Downloaded on 29/06/2019 at 02:55:48 AM) beyond 12 years for after 12 years, adverse possession can be pleaded. That apart, the suit is hit by Section 42 of Specfic Relief Act, as has been held in the case of Executive Officer, Arulmigu Chokkanatha Swamy Koil Trust, Virudhunagar Vs. Chandran and ors.: (2017) 3 SCC 702, para 34, which reads thus:
"34. In the present case, the Plaintiff having been found not to be in possession and having only sought for declaratory reliefs, the suit was clearly not maintainable and has rightly been dismissed by the trial court. In this context the reference is made to the judgment of this Court reported in Ram Saran and Anr. v. Smt. Ganga Devi, wherein para 1 & 4 following was stated:
1. This is a Plaintiffs' appeal by special leave. Ram Saran and Raghubir Saran, the Plaintiffs are brothers. They jointly owned suit property with Chhabili Kuer widow of Lalita Prasad. After the death of Chhabili Kuer on February 8, 1971, Ganga Devi the Defendant in the suit came forward as the legal representative of Chhabili Kuer and got the mutation effected in her name in the place of the deceased Chhabili Kuer. In 1958, the Plaintiffs brought this suit for a declaration that they are the sole owners of the suit properties. They did not claim possession either of the entire or even any portion of the suit properties.
4. We are in agreement with the High Court that the suit is hit by Section 42 of the Specific Relief Act. As found by the fact-finding Courts, Ganga Devi is in possession of some of the suit properties. The Plaintiffs have not sought possession of those properties. They merely claimed a declaration that they are the owners of the suit properties. Hence the suit is not maintainable."
13. In the case of Lachhman Singh (deceased) through Legal Representatives and Ors.(supra), the Apex Court of the land in para 13, in no uncertain terms observed that limitation is a question of jurisdiction and held thus:
"13. The High Court was, in our opinion, entirely wrong in holding that the onus to prove that the suit was beyond (Downloaded on 29/06/2019 at 02:55:48 AM) the period of limitation was on the defendants. Limitation is a question of jurisdiction. Section 3 of the Limitation Act puts an embargo on the court to entertain a suit if it is found to be barred by limitation."
14. In the case of Ramiah (supra), the Apex Court of the land in para 10, opined that skillful pleading cannot bar applicability of inconvenient article, and held thus:
"10. In the case of Ram Surat Singh and Ors. v. Badri Narain Singh, it has been held that if the suit is for possession by a plaintiff who says that while he was in possession of the property he was dispossessed, then he must show possession within 12-years under article 142 (now article 64) of the Limitation Act. To the same effect is the ratio of the judgment in the case of Mohammad Mahmud v. Muhammad Afaq. In the commentary on the Limitation Act by Sanjiva Row [Ninth Edition -- IInd Volume page 549] it has been stated that the question as to which of the two articles would apply to a particular case should be decided by reference to pleadings, though the plaintiff cannot be allowed by skilful pleading to avoid the inconvenient article. On facts of the case, we find that the article 64 is applicable to the present suit. Consequently, the suit has been rightly dismissed by both the Courts below."
15. In the case of Hardesh Ores (P) Ltd.(supra), the Apex Court of the land in para 25, in umambiguous terms declared that "law" includes law of limitation as well and held thus:
"25. The language of Order 7 Rule 11 CPC is quite clear and unambiguous. The plaint can be rejected on the ground of limitation only where the suit appears from the statement in the plaint to be barred by any law. Mr. Nariman did not dispute that "law" within the meaning of Clause (d) of Order VII Rule 11 must include the law of limitation as well. It is well settled that whether a plaint discloses a cause of action is essentially a question of fact, but whether it does or does not must be found out from reading the plaint itself. For the said purpose the averments made in the plaint in their entirety must be held to be correct. The test is whether the averments made in the plaint if taken to be correct in their entirety a decree would be passed. The (Downloaded on 29/06/2019 at 02:55:48 AM) averments made in the plaint as a whole have to be seen to find out whether Clause (d) of Rule 11 of Order 7 is applicable. It is not permissible to cull out a sentence or a passage and to read it out of the context in isolation. Although it is the substance and not merely the form that has to be looked into, the pleading has to be construed as it stands without addition or subtraction of words or change of its apparent grammatical sense. As observed earlier, the language of Clause (d) is quite clear but if any authority is required, one may usefully refer to the judgments of this Court in Liverpool and London S.P. and I Association Ltd. v. M.V. Sea Success I and Anr. and Popat and Kotecha Property v. State Bank of India Staff Association"
16. In the case of P.K. Ramchandran(supra), the Apex Court of the land in para 6, while considering harsh effect of law of limitation even on equitable grounds, held thus:
"6. Law of limitation may harshly effect a particular party but it has to be applied with all its rigour when the statute so prescribes and the Courts have no power to extend the period of limitation on equitable grounds. The discretion exercised by the High Court was, thus, neither proper nor judicious. The order condoning the delay cannot be sustained. This appeal, therefore, succeeds and the impugned order is set aside. Consequently, the application for condonation of delay filed in the High Court would stand rejected and the Miscellaneous First Appeal shall stand dismissed as barred by time. No costs."
17. In the case of Basawaraj and Anr.(supra), the Apex Court of the land in para 13, while considering the policy of Limitation Acts, held thus:
"13. The Statute of Limitation is founded on public policy, its aim being to secure peace in the community, to suppress fraud and perjury, to quicken diligence and to prevent oppression. It seeks to bury all acts of the past which have not been agitated unexplainably and have from lapse of time become stale. According to Halsbury's Laws of England, Vol. 28, p. 266:
"605. Policy of Limitation Acts. The courts have expressed at least three differing reasons supporting the existence of statutes of limitations namely, (1) that long dormant (Downloaded on 29/06/2019 at 02:55:48 AM) claims have more of cruelty than justice in them, (2) that a Defendant might have lost the evidence to disprove a stale claim, and (3) that persons with good causes of actions should pursue them with reasonable diligence."
An unlimited limitation would lead to a sense of insecurity and uncertainty, and therefore, limitation prevents disturbance or deprivation of what may have been acquired in equity and justice by long enjoyment or what may have been lost by a party's own inaction, negligence' or laches."
18. In the case of Board of Trustees of Port of Kandla (supra), the Apex Court of the land in para 25, held thus:
"25. The right to sue in the present case first accrued to the lessee on 13th December, 1978 when in terms of order dated 8th August, 1977 the lease in favour of the lessee was terminated. A suit for declaration that the termination of the lease was invalid hence ineffective for any reason including the reason that the person on whose orders the same was terminated had no authority to do so, could have been instituted by the lessee on 14th of December 1978. For any such suit it was not necessary that the lessee was dispossessed from the leased property as dispossession was different from termination of the lease. But even assuming that the right to sue did not fully accrue till the date the lessee was dispossessed of the plot in question, such a dispossession having taken place on 14th of December, 1978, the lessee ought to have filed the suit within three years of 15th December, 1978 so as to be within the time stipulated under Article 58 extracted above. The suit in the instant case was, however, instituted in the year 1996 i.e. after nearly eighteen years later and was, therefore, clearly barred by limitation. The Courts below fell in error in holding that the suit was within time and decreeing the same in whole or in part."
19. In the case of Venkatanatha Chary(supra), the Apex Court of the land in para 3, held thus:
"3. We have been taken through the plaint. A perusal thereof makes it clear that the cause of action for filing the suit for specific performance accrued to the plaintiff on 31st March, 1992. The limitation for filing such suit is three years. Therefore, the plaintiff could have filed the suit by 31st March, 1995. However, the fact of the (Downloaded on 29/06/2019 at 02:55:48 AM) matter is that the suit was filed in the year 2006 i.e. after 11 years of the expiry of the period of limitation. In this view of the matter, the trial Court was justified in rejecting the plaint on the ground of limitation and the High Court committed an error in reversing the order of the trial Court."
20. In the case of Md. Noorul Hoda(supra), the Apex Court of the land in para 5, held thus:
"5. Section 55(1) of the Transfer of Property Act, 1882 regulates rights and liabilities of the buyer and seller. The seller is bound to disclose to the buyer any material defect in the property or in the seller's title thereto of which the seller is, and the buyer is not, aware, and which the buyer could not with ordinary care discover. The seller is to answer, to the best of his information, all relevant questions put to him by the buyer in respect of the property or the title thereto. The seller shall be deemed to contract with the buyer that the interest which the seller professes to transfer to the buyer subsists and that he has power to transfer the same. Section 3 provides that 'a person is said to have a notice of a fact when he actually knows the fact, or when but for wilful abstention from an enquiry or search which he ought to have made, or gross negligence, he would have known it". Explanation II amplifies that "any person acquiring any immovable property or any share or interest in any such property shall be deemed to have notice of the title, if any, of any person who is for the time being in actual possession thereof. Constructive notice in equity treats a man who ought to have known a fact, as if he actually knows it. Generally speaking, constructive notice may not be inferred unless some specific circumstances can be shown as a starting point of enquiry which if pursued would have lead to the discovery of the fact. As a fact is found that Rafique filed the sale deed dated December 1, 1959 executed in his favour by Mahangu, in Title Suit No. 220/69 for which the petitioner claims to have derivative title through Rafique. Rafique had full knowledge that despite the purported sale, Bibi Raifunnisa got the preliminary decree passed in 1973 and in 1974 under the final decree the right, title and interest in the suit property passed on to her. Under Section 55 when second sale deed dated September 6, 1980 was got executed by the petitioner from Refique, it (Downloaded on 29/06/2019 at 02:55:48 AM) is imputable that Rafique had conveyed all the knowledge of the defects in title and he no longer had file to the property. It is also a finding of fact recorded by the appellate court and affirmed by the High Court that the petitioner was in know of full facts of the preliminary decree and the final decree passed and execution thereof. In other words, the finding is that he had full knowledge, from the inception of Title Suit No. 220/69 from his Benamidar. Having had that knowledge, he got the second sale deed executed and registered on September 6, 1980. Obvious to these facts, he did not produce the second original sale deed nor is an attempt made to produce secondary evidence on proof of the loss of original sale deed."
21. In the case of Raghwendra Sharan Singh(supra), the Apex Court of the land on a survey of earlier opinions while considering the scope and ambit of Order 7 Rule 11 CPC under paras 6 and 7, held thus:
"6.1 At the outset, it is required to be noted that the Plaintiff has instituted the suit against the Defendant for a declaration that the Defendant has acquired no title and possession on the basis of the deed of gift dated 06.03.1981 and that the Plaintiff has got title and possession in the said property. In the suit, the Plaintiff has prayed for the following reliefs:
A. That on adjudication of the facts stated above, it be declared that the Defendant acquired no title and possession on the basis of the said showy deed of gift dated 06.03.1981 and the Plaintiff has got title and possession in the said property.
B. That it be declared that the said showy Deed of Gift dated 06.03.1981 is not binding upon the Plaintiff.
C. That the possession of the Plaintiff be continued over the suit-property and in case if he is found out of possession, a decree for recovery of possession be passed in favour of the Plaintiff.
D. That the Defendant be restrained by an order of ad- interim injunction from transferring or encumbering or interfering with the possession of the Plaintiff over the suit land, during the pendency of the suit.(Downloaded on 29/06/2019 at 02:55:48 AM)
E. That the cost of the suit be awarded to the Plaintiff and against the Defendant.
F. Any other relief or reliefs which deems fit and proper, be awarded to the Plaintiff and against the Defendant.
Considering the averments in the plaint, it can be seen that, as such, the Plaintiff has specifically admitted that the Plaintiff and his brother executed the gift deed on 06.03.1981. It is admitted that the gift deed is a registered gift deed. It also emerges from the plaint that till 2003, neither the Plaintiff nor his brother (during his lifetime) challenged the gift deed dated 06.03.1981 nor, at any point of time, claimed that the gift deed dated 06.03.1981 was a showy deed of gift. In fact, it is the Defendant-Appellant herein who instituted the suit in the year 2001 against his brothers to which even the Plaintiff was a party as Defendant No. 10 and that was a partition suit filed by the Appellant herein-original Defendant. It appears that the summon and the copy of the plaint - T.S. (Partition) Suit No. 203 of 2001 - was served upon the Plaintiff in the year 2001 itself. Still, the Plaintiff averred in the plaint that it came to the knowledge of the Plaintiff with respect to the gift deed on 10.04.2003. Thus, it is born out from the averments in the plaint that, till 2003, the Plaintiff never disputed the gift deed and/or never claimed that the gift deed dated 06.03.1981 was a showy deed of gift. With the aforesaid facts and circumstances, the application submitted by the Appellant-original Defendant to reject the plaint in exercise of powers Under Order 7 Rule 11 of the Code of Civil Procedure is required to be considered.
6.2 While considering the scope and ambit of the application Under Order 7 Rule 11 of the Code of Civil Procedure, few decisions of this Court on Order 7 Rule 11 of the Code of Civil Procedure are required to be referred to 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 Code of Civil Procedure and the decree of the trial Court in considering such application, this Court in para 5 has observed and held as under:(Downloaded on 29/06/2019 at 02:55:48 AM)
5. We have not the slightest hesitation in condemning the Petitioner for the gross abuse of the process of the court repeatedly and unrepentantly 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 Code of Civil Procedure 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, Code of Civil Procedure. 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 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 (Downloaded on 29/06/2019 at 02:55:48 AM) 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.
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 [MANU/SC/0968/1998 : (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 Code of Civil Procedure 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 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 Code of Civil Procedure. Since the power conferred on the Court to terminate civil action at the threshold is drastic, the conditions (Downloaded on 29/06/2019 at 02:55:48 AM) enumerated Under Order 7 Rule 11 Code of Civil Procedure 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 Code of Civil Procedure 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 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.
7. Applying the law laid down by this Court in the aforesaid decisions on exercise of powers Under Order 7 Rule 11 of the Code of Civil Procedure 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 Code of Civil Procedure. 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. (Downloaded on 29/06/2019 at 02:55:48 AM)
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 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 Code of Civil Procedure.
7.1 At this stage, it is required to be noted that, as such, the Plaintiff has never prayed for any declaration to set aside the gift deed. We are of the opinion that such a prayer is not asked cleverly. If such a prayer would have been asked, in that case, the suit can be said to be clearly barred by limitation considering Article 59 of the Limitation Act and, therefore, only a declaration is sought to get out of the provisions of the Limitation Act, more particularly, Article 59 of the Limitation Act. The aforesaid aspect has also not been considered by the High Court as well as the learned trial Court."
22. Applying the principles deducible from the opinions aforesaid to the factual matrix of the case at hand, it is evident that the revenue suit proceedings were instituted by the plaintiff- (Downloaded on 29/06/2019 at 02:55:48 AM)
petitioner after a delay of 53 years with clever drafting not seeking declaration and that would lead to the inescapable conclusion that the suit was clearly barred by limitation. Hence, the Courts below committed no illegality much less material illegality so as to call for any interference by this Court in exercise of writ jurisdiction under Article 227 of the Constitution of India.
23. In the result, writ application fails, and is, hereby dismissed.
24. However, in the facts and circumstances of the case, there shall be no order as to costs.
(VEERENDR SINGH SIRADHANA),J pcg (Downloaded on 29/06/2019 at 02:55:48 AM) Powered by TCPDF (www.tcpdf.org)