Bombay High Court
Abdul Majid Khan Salim Ullah Khan (Since ... vs Nagorao S/O Parbatrao Umale And Others on 10 October, 2018
Author: A.S. Chandurkar
Bench: A.S. Chandurkar
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH : NAGPUR.
CIVIL REVISION APPLICATION NO.67 OF 2018
APPLICANTS: Abdul Majid Khan Salim Ullah Khan,
(Ori.R.A.) since dead through his legal
representatives:
1. Sultana Begum Wd/o Inamullah Khan,
Aged about 74 years, Occ. Household,
2. Javed @ Pappu S/o Inamullah Khan
Pathan, Aged about 48 years, Occ:
Cultivation,
3. Ikramullah Khan S/o Inamullah Khan,
Aged about 52 years, Occ. Business,
All the above applicants No.1 to 3 are
R/o Near Petrol Pump, Ward No.1,
Hetipura, Kondhali, Post Kondhali,
Tahsil Katol and Dist. Nagpur.
4. Azara Parveen W/o Gaffar Khan, Aged
about 46 years, Occ. Household, R/o
Salod (Herapur), Tahsil and Dist.
Wardha.
5. Gazala Parveen W/o Zaheer Khan, Aged
about 44 years, Occ. Household, R/o
Near Railway Line, Kalmeshwar, Tahsil
Kalmeshwar and Dist. Nagpur.
6. Arsala W/o Ashique Shaikh, Aged about
29 years, Occ. Household, R/o Zakir
Hussain Colony, Wardha, Tahsil and
Dist. Wardha.
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-VERSUS-
RESPONDENT: 1. Nagorao S/o Parbatrao Umale, Aged
(Original about 64 years, Occ. Cultivation,
Plaintiffs)
(Ori. RA)
2. Manik @ Manohar S/o Parbatrao
Umale, Aged about 62 years, Occ.
Cultivation,
3. Dhanraj S/o Parbatrao Umale, Aged
about 54 years, Occ. Cultivation,
4. Dyaneshwar S/o Parbatrao Umale, Aged
about 51 years, Occ. Cultivation,
Above respondent No.1 to 4 are R/o
Kondhali, Tahsil Katol and Dist. Nagpur.
(Defendant 5. Abdul Rashid Khan Salimullah Khan,
No.2)
Aged Major, Occ. Cultivation,
(Defendant 6. Faiyaz Ali Khan Samiullah Khan, Aged
No.3)
Major, Occ. Cultivation,
(Defendant 7. Zakiullah Khan Samiullah Khan, Aged
No.4)
about Major, Occ. Cultivation,
(Defendant 8. Karimunnisa Wd/o Samiullah Khan,
No.5)
Aged about Major, Occ. Cultivation,
(Defendant 9. Safiyakhatun D/o Samiullah Khan, Aged
No.6)
about Major, Occ. Cultivation,
(Defendant 10. Mumtaz Begum Wd/o Samiullah Khan,
No.7)
Aged about Major, Occ. Cultivation,
(Defendant 11. Mushtati Begum Wd/o Samiullah Khan,
No.8)
Aged about Major, Occ. Cultivation,
(Defendant 12. Jubunissa Begam Wd/o Samiullah Khan,
No.9)
Aged about Major, Occ. Cultivation,
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(Defendant 13. Sarakhatun W/o Iqbal Hussain, Aged
No.10)
about Major, Occ. Cultivation,
All the above respondent Nos.5 to 13
are R/o Hetipura Ward No.1, Kondhali,
Tahsil Katol and Dist. Nagpur.
(Defendant 14. Kondhali National Welfare Society Regd.
No.11)
No.F-2396 (Nagpur) through its
Secretary, Mohd. Atik Sheikh Abdullah,
Aged about 78 years, R/o C/o Nizamiya
High School, Kondhali, Tahsil Katol and
Dist. Nagpur.
Shri S. O. Ahmed, Advocate for the appellants.
Shri Sudhir Malode, Advocate for the Non-applicant Nos.1 to 4.
CORAM: A.S. CHANDURKAR, J.
DATED: 10
th OCTOBER, 2018.
ORAL JUDGMENT :
1. The applicants who are the original defendant Nos.1 (a to f) are aggrieved by the order passed by the trial Court rejecting the application that was filed by them under provisions of Order VII Rule 11 of the Code of Civil Procedure, 1908 (for short, the Code) seeking rejection of the plaint.
2. The non-applicant Nos.1 to 4 are the original plaintiffs who have filed suit for declaration that their grandmother Mani ::: Uploaded on - 12/10/2018 ::: Downloaded on - 13/10/2018 01:06:17 ::: CRA67.18.odt 4/7 Ganpati Umale expired on 20-1-1040 and that she had not executed the sale deed dated 9-3-1942. A declaration that the said sale deed was a fraudulent document has been sought with other ancillary prayers including a declaration that the registered Gift Deed dated 4-12-1992 did not confer any title on defendant No.11. Possession of western side of the suit property has also been sought. In the aforesaid suit the legal heirs of defendant No.1 moved the application below Exhibit-40 under provisions of Order VII Rule 11 of the Code stating therein that on a plain reading of the plaint it was barred by limitation. According to the said defendants, the sale-deed having been executed on 9-3-1942 and possession having been handed over, the suit as filed after almost 74 years was barred by limitation. This application was opposed by the plaintiffs and the trial Court observed that the question of limitation was a mixed question of facts and law and it would not be permissible to reject the plaint at the threshold. It was observed that after the parties have led their evidence, the aspect of limitation could be considered. Being aggrieved said defendants have filed this Civil Revision Application.
3. Shri S. O. Ahmed, learned Counsel for the applicants submitted that in the light of the reliefs sought in the plaint and the documents that were filed along with the said plaint, it was ::: Uploaded on - 12/10/2018 ::: Downloaded on - 13/10/2018 01:06:17 ::: CRA67.18.odt 5/7 clear that on 9-3-1942 a sale-deed was executed by said Mani Ganpati Umale in favour of the predecessor of the defendants in respect of 0.43 R land. Possession was also handed over which fact was within the knowledge of the plaintiffs as they were in possession of the adjoining properties. The plea as raised as they got knowledge only on 22-3-2015 in the revenue proceedings was not liable to be accepted and that date was mentioned merely to bring the suit within limitation. As possession of the suit property was delivered in the year 1942 itself, the relief of possession was barred by limitation. He also referred to the documents filed along with the plaint and especially the revenue records to demonstrate that the sale-deed dated 9-3-1942 was validly executed as its executant expired in the year 1963. Placing reliance on the judgment in Civil Revision Application No.36 of 2014 (M/s Umed Realators and others vs. Smt. Shobha wd/o Mahadeo Deshpande and others) decided on 17-3-2017, it was submitted that in the light of the plaint averments and the documents filed along with the plaint, the suit was clearly barred by limitation. The trial Court by refusing to reject the plaint committed a jurisdictional error.
4. Shri Sudhir Malode, learned Counsel for the non- applicant Nos.1 to 4 on the other hand supported the impugned order. He referred to the plaint averments to indicate that said ::: Uploaded on - 12/10/2018 ::: Downloaded on - 13/10/2018 01:06:17 ::: CRA67.18.odt 6/7 Mani Ganpat Umale had expired much prior to execution of the sale deed dated 9-3-1942. According to him, a relief sought was that said executant had expired on 20-1-1940 and hence, 9-3-1942 she was not alive for executing the sale-deed. Details in that regard have been further pleaded. In para 18 it has been pleaded that the plaintiffs were not aware about the alleged sale-deed and that they continued in possssion of the major eastern portion of the suit property. In the light of these and other averments, the relief of declaration that the sale-deed dated 9-3-1942 was void has been sought. It was thus submitted that the plaint was not liable to be rejected.
5. Along with the plaint, documents in relation to the extracts of the births and death register have been placed to indicate that the executant of the said sale-deed expired on 20-1- 1940. The revenue records are sought to be relied upon by the applicants to urge that said executant died in the year 1963. On perusal of the plaint averments, at this stage, it would not be permissible to record a finding either that the executant had expired on 20-1-1940 or that she expired in the year 1963. That aspect has to be considered on the basis of evidence on record. The averments in the plaint when taken at their face value indicate that the plaint was not liable to be rejected under provisions of Order ::: Uploaded on - 12/10/2018 ::: Downloaded on - 13/10/2018 01:06:17 ::: CRA67.18.odt 7/7 VII Rule 11(d) of the Code. The trial Court has rightly observed that the question of limitation is a mixed question of law and fact requiring evidence to be recorded. As regards the prayer for possession, the plaint averments indicate in para 18 that the plaintiffs claimed to be in possession of major portion of the land. Even this aspect can be adjudicated after the parties led evidence. In the facts of the present case and in the light of plaint averments, it would not be permissible to reject the plaint by relying upon the ratio of the decision in M/s Umed Realtors (supra).
6. By clarifying that the observations made in the order are only for deciding the application below Exhibit-40 and that if the issue of limitation is framed, same shall be decided on the basis of evidence led by the parties, it is held that the impugned order does not suffer from any jurisdictional error. It is always open for the defendants to raise all permissible pleas in the written statement.
7. Civil Revision Application is dismissed.
JUDGE //MULEY// ::: Uploaded on - 12/10/2018 ::: Downloaded on - 13/10/2018 01:06:17 :::