Gujarat High Court
Sankabhai Rambhai Desai & vs Rathod Ujamba Alias Kantaben -Decd. & on 18 October, 2016
Author: Z.K.Saiyed
Bench: Z.K.Saiyed
C/CRA/408/2016 CAV JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
CIVIL REVISION APPLICATION NO. 408 of 2016
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE Z.K.SAIYED
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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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SANKABHAI RAMBHAI DESAI & 1
Versus
RATHOD UJAMBA ALIAS KANTABEN -DECD. & 1
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Appearance:
VIRAL K SHAH, ADVOCATE for the Applicants
MR. YOGENDRA THAKORE, ADVOCATE for the Respondents No.1.1- 1.5
NOTICE SERVED for the Respondents No. 2.1 - 2.10
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CORAM: HONOURABLE MR.JUSTICE Z.K.SAIYED
Date : 18/10/2016
CAV JUDGMENT
1. The applicants have filed the present application under Section 115 of the Civil Procedure Code, 1908 challenging the order dated 02.07.2016 passed by the learned Principal Civil Judge, Talod below application Exhibit 21 filed under Order 7, Rule 11 Page 1 of 11 HC-NIC Page 1 of 11 Created On Wed Oct 19 00:34:11 IST 2016 C/CRA/408/2016 CAV JUDGMENT of the Civil Procedure Code in Regular Civil Suit No.19 of 2015 whereby the learned Principal Civil Judge has rejected the said application.
2. The brief facts leading to the present case are as under. 2.1 The dispute is with regard to the land bearing block no.128, survey nos. 142, 143 admeasuring 3 - 09 - 59 situated at Village : Gora, Taluka : Talod, District: Sabarkantha. The suit property was originally owned by Umed Panaji. Umed Panaji expired, the name of Hiraba who is elder daughter of said Umed Panaji came to be mutated in the revenue records as an owner and occupier of the suit property vide revenue entry no.118 dated 26.01.1958. Respondent no.2 has remained absolute owner of the suit property since 1958 till the same came to be sold to the applicants in the year 2005. The applicant no.1 has purchased the said property by registered sale deed no.336 dated 28.03.2006.
2.2 The revenue entry no.732 came to be mutated in favour of applicant no.1. The objection was raised by respondent no.1 for the said mutation entry and the said entry came to be cancelled by the Mamlatdar, Talod. The applicant no.1 has preferred an appeal being R.T.S. Appeal No.9/2006 before the Deputy Collector, Himmatnagar whereby the Deputy Collector, Page 2 of 11 HC-NIC Page 2 of 11 Created On Wed Oct 19 00:34:11 IST 2016 C/CRA/408/2016 CAV JUDGMENT Himmatnagar allowed the appeal and the mutation entry no.732 came to be restored on record.
2.3 The applicant no.1 conveyed his interest in the suit property by way of gift deed dated 06.05.2011 to applicant no.2 and entry no.951 to that effect came to be made in the revenue record with regard to the suit property on 05.07.2011. 2.4 The respondent no.1 challenged the order dated 05.06.2006 passed by the Deputy Collector, Himmatnagar before the Collector, Himmatnagar. The Collector has quashed and set aside the order passed by the Deputy Collector, Himmatnagar. The applicants have preferred an appeal before the Secretary (Appeals) Revenue Department whereby the Secretary (Appeal), Revenue Department passed an order on 30.11.2015 allowing the appeal.
2.5 The present respondent no.1 has instituted Regular Civil Suit No.9 of 2015 before the learned Senior Civil Judge, Civil Court, Talod challenging the said order passed by the Secretary (Appeals) Revenue Department. In the said suit, the applicants filed an application below Exhibit 21 under Order VII Rule XI of the Civil Procedure Code, since the impugned suit proceedings were barred by delay and latches. The said application below Exhibit 21 came to be rejected by the learned Principal Civil Page 3 of 11 HC-NIC Page 3 of 11 Created On Wed Oct 19 00:34:11 IST 2016 C/CRA/408/2016 CAV JUDGMENT Judge, Talod vide order dated 02.07.2016.
3. The present application is preferred by the applicants challenging the said order dated 02.07.2016 passed by the learned Principal Civil Judge, Talod.
4. Learned advocate for the applicants has contended that respondent no.1 had vexatiously filed the proceedings qua the suit property and had suppressed material facts that the revenue proceedings came to be decided and attained finality. He has contended that the learned trial Court has not taken into consideration the fact that respondent no.1 has chosen to prefer the suit when they lost in the revenue proceedings which has attained finality. Moreover, any declaration tantamount to a position is against revenue entry no.118 came to be made in 1958 is illegal and against the provisions of the Bombay Land Revenue Code, since such entry was mutated in accordance with the provisions of the Code to which there was no challenge. He has contended that trial Court has not considered the fact that the suit proceedings more particularly the suit is liable to be rejected on the ground of limitation. It may be noted that respondent no.1 filed the suit praying for title over the suit property and setting aside the sale deed dated 28.03.2005. He has contended that the limitation for filing suits seeking such prayer has been provided under Article 59 of the Page 4 of 11 HC-NIC Page 4 of 11 Created On Wed Oct 19 00:34:11 IST 2016 C/CRA/408/2016 CAV JUDGMENT Limitation Act provides for setting aside conveyance and Article 65 of the Limitation Act provides for seeking possession in an immovable property. He has contended that insofar as the prayer for setting aside an instrument is concerned, the limitation prescribed is of 3 years which begins from the date of knowledge of such instrument. He has contended that the respondents have in the knowledge of the sale which took place in the year 2005 and they have instituted the suit in the year 2015, which is beyond the period of limitation. In so far as the period for seeking possession is concerned, the prescribed period of limitation is 12 years beginning from the date when the possession becomes adverse to the original plaintiff. Since the predecessor of respondent no.2 by virtue of revenue entry no.118 dated 26.01.1958, the possession of the property can be said to have become adverse from that date. After almost 58 years, respondent no.1 had preferred the suit proceedings only after such unreasonable period, which clearly reflects that the suit itself is barred by limitation even on the count of Article 65 of the Limitation Act. He has contended that Article 110 of the Limitation Act provides that a person seeking a right of share in a joint family property, the prescribed period of limitation is 12 years when the exclusion is known. It may be noted that the constructive knowledge of the exclusion of respondent no.1 can be said to have been known in 1958 when entry no.118 dated 26.01.1958 came to be made. He has Page 5 of 11 HC-NIC Page 5 of 11 Created On Wed Oct 19 00:34:11 IST 2016 C/CRA/408/2016 CAV JUDGMENT contended that the original defendants, applicants herein have filed an application below Exhibit 21 under Order VII, Rule XI of the Civil Procedure Code. He has drawn the attention of the Court to the relevant two dates i.e. 25.10.2000 and 28.03.2005 and contended that on 25.10.2000, the mother of the original plaintiffs had expired and on 28.03.2005, a sale deed was executed by original defendant nos.1 and 2. He has contended that the suit came to be filed on 27.06.2015 i.e. after a period of almost 12 years. He has read the registered sale deed and contended that from the contention of the sale deed, prima facie it appears that the facts of the sale transaction is in the knowledge of the respondents. He has referred to the order passed by the trial Court and has contended that the trial Court has wrongly considered that the suit is filed within the period of 12 years. He has contended that from the suit as well as documents on record, it appears that the suit property was belonging to the maternal grandfather Umedji Panaji and after the death of Umedji Panaji, the name of Hiraba, who is being an elder daughter of Umedji Panaji, was entered into revenue record vide entry no.118. He has contended that the suit property was belonging to the maternal grandfather of the original plaintiffs and the suit property was in the name of Hiraba was entered by heirship. He has contended that the original plaintiffs are also heirs of second daughter of Umedji Panaji and, they are also equal share in the suit property and Page 6 of 11 HC-NIC Page 6 of 11 Created On Wed Oct 19 00:34:11 IST 2016 C/CRA/408/2016 CAV JUDGMENT even their names are also not entered in the revenue record, it cannot be said that they have lost their rights. He has contended that from the date of execution of the sale deed and the date of filing of the suit, prima facie it establishes that after a period of 12 years, the suit was not filed. He has contended that the suit was filed for extortion. He has relied upon the decision of this Court in the case of Kanjibhai Bhagwanjibhai Patel Vs. Nanduben Shamjibhai Sorathiya, reported in 2013 (1) GLH 51. He has also relied upon the judgment dated 05.10.2016 of this Court in the case of Mukesh Keshavlal Patel and another Vs. Natwarlal Savabhai Prajapati and others rendered in Civil Revision Application No.347 of 2016. He has urged that the order dated 02.07.2016 passed by the learned Principal Civil Judge, Talid below application Exhibit 21 in Regular Civil Suit No.19 of 2015 may be quashed and set aside.
5. Per contra, learned advocate appearing for the respondents has submitted that the learned Principal Civil Judge has rightly considered and observed that the suit was filed within the time limit. He has relied upon the observation made by the learned Principal Civil Judge more particularly para-5 of the order and contended that the revenue authority has not considered the said issue and the present respondents have filed the suit. He has contended that prima facie it establishes that the suit was filed within the time limit, so on the ground of limitation, the Page 7 of 11 HC-NIC Page 7 of 11 Created On Wed Oct 19 00:34:11 IST 2016 C/CRA/408/2016 CAV JUDGMENT present application cannot be entertained by this Court. He has contended that the order passed by the learned Principal Civil Judge is just and proper and no interference is required to be called for.
6. Heard learned advocate appearing on behalf of the applicants and learned advocate appearing on behalf of the respondents. I have gone through the documents available on record. I have also gone through the order passed by the trial Court. I have perused the plaint of Regular Civil Suit No.19 of 2015 in which the original plaintiffs have disclosed the fact before the Court below that they are the legal heirs and Hiraba and Ujamben both were daughter of Umedji Panaji. From the sale-deed and gift deed, it appears that the said transaction was in the knowledge of the respondents and the same was not challenged before the competent authority within a period of limitation. From perusal of the contention raised in the civil suit, it appears that the original plaintiffs have not disclosed specific cause of action to file suit against original defendants. From the date of documents, it appears that the said fact was in the knowledge of the respondents. In the case of Church of Christ Charitable Trust and Educational Charitable Society, represented by its Chairman Vs. Ponniamman Educational Trust, represented by its Chairperson / Managing Trustee, reported in (2012) 8 SCC 706 for the proposition that if the date Page 8 of 11 HC-NIC Page 8 of 11 Created On Wed Oct 19 00:34:11 IST 2016 C/CRA/408/2016 CAV JUDGMENT is one which attracts bar of limitation, plaint must conform to Order VII Rule-6 and specific ground on which contention of limitation is claimed and also propose that there is specific cause of action shown against the particular defendant. In the said case, the Hon'ble Apex Court has observed that power of Order VII Rule-11 of the Code of Civil Procedure, 1908 can be exercised at any stage of the suit i.e. before registering the plaint or after issuance of summons to the defendant or at any time before the conclusion of the trial. In the case of Haresh Ores (P) Ltd. Vs. Hede and Company, reported in (2007) 5 SCC, 614 wherein it has been observed that the rejection of plaint on the ground of limitation, is contemplated under Order-VII Rule- 11(d) wherein law within the meaning of Order-VII Rule-11(d) must include the Law of Limitation. In the case of Maharaj Shri Manvendrasinhji Ranjitsinhji Jadeja Vs. Rajmata Vijaykunwarba, reported in 1998 (2) G.L.H. 823, it is held that any averment made contrary to law cannot be considered as disclosing cause of action and even after framing of issues Court has powers to exercise jurisdiction under Order VII Rule-11 of the Code of Civil Procedure, 1908. In the case on hand, no cause of action is shown against the present applicants.
7. After hearing the learned advocates for the parties and considering the aforesaid decisions, I am of the opinion that the sale-deed was executed on 28.02.2005 and the suit came to be instituted on 27.06.2015 and the gift deed was executed on Page 9 of 11 HC-NIC Page 9 of 11 Created On Wed Oct 19 00:34:11 IST 2016 C/CRA/408/2016 CAV JUDGMENT 19.05.2011. From the above observations and in view of section 54 of the Limitation Act and looking to the observations made by this Court in Civil Revision Application No.347 of 2016 as well as contentions raised in suit, the said suit is not filed within three years and even from the documents, it establishes that as per section 54 of the Limitation Act, the suit of the original plaintiffs is not covered within the meaning of Article 54 of the Limitation Act. From the order passed by the trial Court, it appears that the learned Civil Judge has not considered the aforesaid decisions which are relied upon by the applicants and no proper reasons are assigned while passing the order. I have also gone through the observation made by the Apex Court in the aforesaid decisions as well as the observations made by this Court in Civil Revision Application No.347 of 2016, the fact of the said revision is also squarely covered to the fact of the present case. Prima facie, it appears that the learned Civil Judge has committed an error in rejecting the application below application Exhibit 21 and, therefore, the interference by this Court is required to be called for.
8. For the foregoing reasons, the application is allowed. The order dated 02.07.2016 passed by the learned Principal Civil Judge, Talod below application Exhibit 21 filed under Order 7, Rule 11 of the Civil Procedure Code in Regular Civil Suit No.19 of 2015 is hereby quashed and set aside.
Page 10 of 11 HC-NIC Page 10 of 11 Created On Wed Oct 19 00:34:11 IST 2016 C/CRA/408/2016 CAV JUDGMENT (Z.K.SAIYED, J.) vijay Learned advocate for the respondents requests to stay this order for a period of four weeks. A request is granted. The order passed by this Court is stayed for a period of four weeks from today.
(Z.K.SAIYED, J.) vijay Page 11 of 11 HC-NIC Page 11 of 11 Created On Wed Oct 19 00:34:11 IST 2016