Himanshubhai Pannalal Kothari vs Legal Heirs Of Decd. Hasubhai Kalubhai ... on 24 February, 2020

[Cites 6, Cited by 1]

Gujarat High Court

Himanshubhai Pannalal Kothari vs Legal Heirs Of Decd. Hasubhai Kalubhai ... on 24 February, 2020

Equivalent citations: AIR 2020 GUJARAT 132, AIRONLINE 2020 GUJ 412

Bench: G.R.Udhwani

          C/CRA/147/2016                                      JUDGMENT



            IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

              R/CIVIL REVISION APPLICATION NO. 147 of 2016
                                  With
              R/CIVIL REVISION APPLICATION NO. 148 of 2016

FOR APPROVAL AND SIGNATURE:

HONOURABLE MR.JUSTICE G.R.UDHWANI
==========================================================

1     Whether Reporters of Local Papers may be allowed toYes
      see the judgment ?

2     To be referred to the Reporter or not ?                    No

3     Whether their Lordships wish to see the fair copy of the No
      judgment ?

4     Whether this case involves a substantial question of lawNo
      as to the interpretation of the Constitution of India or any
      order made thereunder ?

==========================================================
                HIMANSHUBHAI PANNALAL KOTHARI
                            Versus
     LEGAL HEIRS OF DECD. HASUBHAI KALUBHAI                    SHAIKH & 14
                           other(s)
===============================================================
Appearance:
MR.D K.PUJ(3836) for the Applicant(s) No. 1
DELETED(20) for the Opponent(s) No. 10,11,8
MALAV M MULANI(8844) for the Opponent(s) No. 9
MR TEJAS P SATTA(3149) for the Opponent(s) No. 1
MS SANDHYA D NATANI(3678) for the Opponent(s) No. 2
RUCHIR A PATEL(7954) for the Opponent(s) No. 12,13,14,15
RULE SERVED(64) for the Opponent(s) No. 3,5,6.1,6.3,6.4,6.5,6.6,7
UNSERVED EXPIRED (R)(69) for the Opponent(s) No. 4,6.2
==============================================================
    CORAM: HONOURABLE MR.JUSTICE G.R.UDHWANI

                               Date : 24/02/2020

                           COMMON ORAL JUDGMENT

1. Order dated 16.04.2016 rendered below Exh. 11 and Exh. 8 by Page 1 of 7 Downloaded on : Mon Jun 15 09:22:07 IST 2020 C/CRA/147/2016 JUDGMENT the learned Principal Senior Civil Judge, Radhanpur in Regular Civil Suit No. 1 of 2015 under Order 7 Rule 11 of the Code of Civil Procedure, 1908 ( for short 'CPC') rejecting the application seeking rejection of the plaint is sought to be assailed by unsuccessful defendant in these Civil Revision Applications under Section 115 of CPC.

2. The dispute in the suit centers around the land bearing Revenue Survey Number No. 377 /b/6 paiki of Radhanpur City Survey Sheet No. 85, City Survey Note No. 6553 admeasuring 0.29 guntha i.e 2934 square meters.

2,1 One deceased Hasubhai Kalubhai Shaikh the father of the opponents no. 1 to 5 was the owner of the said land. He is said to have conveyed the titles thereon to the petitioner by the saledeed dated 08.07.1988; the vendor died on 10.10.1990.

2.2 Opponents no. 1 to 5 raised the dispute in relation to the said land in the notice addressed to the petitioner. The grievance in the notice was that the dispute which was earlier raised in respect of the identification of two parcels of land still persists and what had been sold to the petitioner is the land admeasuring 11560 square feet and not the entire parcel of land and that rest of the portion was in their possession, Page 2 of 7 Downloaded on : Mon Jun 15 09:22:07 IST 2020 C/CRA/147/2016 JUDGMENT in respect of which, they were collecting rent and the saledeed which comprehended the entire piece of land was forged and bogus and was not executed by their father. Reply to the notice was given by the petitioner on 22.11.2002 and thereafter the plaintiffs did not take any action as indicated in the notice, for a period of about 13 years. The suit was filed in the year 2015.

2.3 Although the plaintiffs are unable to disown the notice, they avoided the elaborate reference to the facts contained in the notice and only stated in their pleadings that such notice was issued by them. The plaintiffs thus deliberately avoided in the plaint the date of notice presumably to avoid the wreath of Order 7 Rule 11 (d) of CPC.

3. In the aforesaid background, the case is required to be appreciated.

4. It is settled legal position that the averments in the plaint and the document can only be the material to persuade the court to decide the application under Order 7 Rule 11 of CPC. At times however by resorting to clever drafting certain relevant facts would be omitted from the plaint so as to save the case from the clutches of Order 7 Rule 11 of CPC. This court thus explained the purpose, object and scope of Order 7 Rule 11 of CPC in Rajhansh Infracon India ( Pvt) Ltd. vs. Santosh Page 3 of 7 Downloaded on : Mon Jun 15 09:22:07 IST 2020 C/CRA/147/2016 JUDGMENT Rameshbhai Rathod ( Civil Revision Application No. 343 of 2019 decided on 26.12.2019). It was inter alia pointed that the plaintiff must make all the averments to his knowledge and information in the plaint and cannot claim a premium for deliberate omission of certain relevant facts. The suppressed facts, if brought to the notice of the court, can always be taken into account for the purpose of Order 7 Rule 11 of C.P.C 4.1 It is again settled legal position that the plaint would mean the plaint as a whole and the plaint in part cannot be rejected if sustainable under Order 7 Rule 11 of CPC. On this count proposition relied upon by learned counsel Mr. Satta in Sejal Glass Ltd. Vs. Navilan Merchant Pvt. Ltd AIR 2017 SC 4477 is required to be taken note of. 4.2 It is again settled position that when the disputed facts require adjudication by trial, the powers under Order 7 Rule 11 of CPC cannot be exercised. Furthermore when the fraud is pleaded, it is again settled legal position that the period of limitation would not run as indicated in section 17 of the Limitation Act of fraud until noticing of the fraud by the person defrauded thereby.

5. The plaintiff could not dispute the notice (supra). As Indicated above, he clearly questioned the saledeed itself on various counts in Page 4 of 7 Downloaded on : Mon Jun 15 09:22:07 IST 2020 C/CRA/147/2016 JUDGMENT the notice itself in the year 2002. The plaintiffs also stated that the sale deed was outcome of fraud; they also stated that their father was signatory to the document. Thus in the opinion of this court the period of limitation started running from the date of notice and expired three years since under Article 59 of the Limitation Act. Apparently the suit was barred by limitation.

6. The plaint seeks the declaration that the saledeed is illegal and void. Prayer 12(2) seeking annulment of the sale deed with the attribution of the fraud to the petitioner cannot be made available to the plaintiffs as the challenge to the sale deed is made after a period of limitation as explained above and thus the consequential prayer of right to obtain the possession from tenants must necessarily fail since the titles in the land are already conveyed to the petitioner. Prayers 12(5) and 12(6) are presumptive in nature presuming that the defendant no. 1( petitioner) is not the land owner. The prayer is contrary to the title document. If the sale deed is not annuled, none of the prayers above referred would be available to the plaintiffs and therefore prayers are interdependent and therefore if the main prayer fails on the ground of limitation, other prayers must necessarily fail. Therefore the proposition of law that the plaint cannot be rejected in part, cannot be applied to the facts of the present case.

Page 5 of 7 Downloaded on : Mon Jun 15 09:22:07 IST 2020

C/CRA/147/2016 JUDGMENT

7. The trial court seems to be oblivious to the true purport, scope and ambit of Order 7 Rule 11 of CPC which led it to unwarranted reasons and inferences. It failed to appreciate that the notice revealed the knowledge with the plaintiffs about the alleged fraud in execution of the sale deed in the year 2002 itself. It failed to take into consideration Section 17 of the Limitation Act according to which, the period of limitation would stop running until the discovery of fraud and as a necessary corollary it would spring into action from the date of discovery of the fraud.

7.1 It was also misconceived for the trial court to say that the issue of limitation was mixed question of fact and law. It is settled law that if the facts touching the limitation are not disputable, the issue of limitation would not be a mixed question of fact and law.

7.2 It was again misconceived for the trial court to hold that the suit was entertainable on other prayers. As pointed out herein above, if the plaint fails on limitation, the prayers incidental to ownership, would also not survive. Infact it is settled legal position that possession follows the ownership and therefore once a valid saledeed conveying the title was in existence, the relief as to possession from the tenants to the plaintiffs was not available as tenants were bound to acknowledge the petitioner Page 6 of 7 Downloaded on : Mon Jun 15 09:22:07 IST 2020 C/CRA/147/2016 JUDGMENT as their landlord and cannot be permitted to deliver the possession to any person other than landlord.

8. For the foregoing reasons impugned order is not sustained; the same is quashed and set aside. Civil Revision Applications are allowed. The plaint aforementioned must fail and shall stand rejected. Rule is made absolute.

(G.R.UDHWANI, J) niru* Page 7 of 7 Downloaded on : Mon Jun 15 09:22:07 IST 2020

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