Gujarat High Court
Bhanuben Chandubhai Patel vs Kalidas Shankarbhai Patel on 7 April, 2025
Author: Biren Vaishnav
Bench: Biren Vaishnav
NEUTRAL CITATION
C/FA/763/2017 CAV JUDGMENT DATED: 07/04/2025
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Reserved On : 13/08/2024
Pronounced On : 07/04/2025
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/FIRST APPEAL NO. 763 of 2017
With
CIVIL APPLICATION (FOR STAY) NO. 1 of 2017
In R/FIRST APPEAL NO. 763 of 2017
FOR APPROVAL AND SIGNATURE:
HONOURABLE THE ACTING CHIEF JUSTICE MR. JUSTICE
BIREN VAISHNAV
and
HONOURABLE MS. JUSTICE NISHA M. THAKORE
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Approved for Reporting Yes No
YES
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BHANUBEN CHANDUBHAI PATEL & ORS.
Versus
KALIDAS SHANKARBHAI PATEL & ORS.
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Appearance:
MS MEGHA JANI(1028) for the Appellant(s) No. 1.1,1.2,1.3
ADVOCATE NOTICE SERVED for the Defendant(s) No. 5,6,7
DECEASED LITIGANT THROUGH LEGAL HEIRS/
REPRESTENTATIVES for the Defendant(s) No. 1,2,8
J B BRAHMBHATT(7729) for the Defendant(s) No. 1.2
JENIL M SHAH(7840) for the Defendant(s) No. 5,6
MR ANKIT B PANDYA(5906) for the Defendant(s) No.
2.1,2.2,2.3,2.4
MR SUNIL S JOSHI(2925) for the Defendant(s) No. 1.2
MR TATTVAM K PATEL(5455) for the Defendant(s) No. 3,4
MR VIMAL A PUROHIT(5049) for the Defendant(s) No. 10,9
NOTICE SERVED BY DS for the Defendant(s) No.
1.1,1.3,1.4,1.5,1.6
ROHAN N SHAH(8866) for the Defendant(s) No. 11
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CORAM:HONOURABLE THE ACTING CHIEF JUSTICE MR.
JUSTICE BIREN VAISHNAV
and
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NEUTRAL CITATION
C/FA/763/2017 CAV JUDGMENT DATED: 07/04/2025
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HONOURABLE MS. JUSTICE NISHA M. THAKORE
CAV JUDGMENT
(PER : HONOURABLE MS. JUSTICE NISHA M. THAKORE)
1. The present appeal is filed by the original plaintiff - Bhanuben Chandubhai Patel, who is reported to have expired during the course of arguments of this appeal. The heirs and legal representatives of the deceased plaintiffs have been permitted to be brought on record by order dated 31 st July, 2024. The arguments were treated to be concluded. The learned advocates for the respective parties have placed on record their written submissions and the matter was reserved for orders.
2. The appellants being the heirs and legal representatives of the deceased plaintiff are aggrieved and dissatisfied by the judgment and decree dated 23 rd December, 2016 passed by the learned Principal Senior Civil Judge, Ahmedabad Rural at Mirzapur in Special Civil Suit no.607 of 2013 filed by the original plaintiff - deceased appellant seeking partition of ancestral property between her and few of the respondents who appears to be the legal heirs and representatives of her deceased brothers.
3. Pending the suit, an application for rejection of plaint was submitted by the original defendant nos.5 to 7 under Order-VII Rule-11(d) of the Code of Civil Procedure, 1908 (hereinafter referred to as 'the Code'), which was allowed by the aforesaid impugned order leading to dismissal of the aforesaid suit as being barred by law of limitation. Hence, Page 2 of 27 Uploaded by RATHOD KAUSHIKSINH JILUSINH(HC00957) on Wed Apr 09 2025 Downloaded on : Wed Apr 09 22:15:11 IST 2025 NEUTRAL CITATION C/FA/763/2017 CAV JUDGMENT DATED: 07/04/2025 undefined this appeal.
4. Considering the grounds raised in the appeal and the submissions made by Ms. Megha Jani, learned advocate for the appellants, this Court by order dated 21 st February, 2017 had issued notice upon the respondents.
5. Mr. J. R. Brahmbhatt, learned advocate had initially appeared on behalf of the respondent no.1.2. Though notice was served upon the defendant nos.1.1, 1.3 to 1.6, 3 and 4, no appearance has been entered on their behalf. Mr. Sunil S. Joshi, learned advocate later on has appeared on behalf of the respondent no.1.2. Mr. Tatvam K. Patel, learned advocate has appeared on caveat on behalf of the respondent nos.3 and 4 and Mr. Jenil Shah learned advocate had entered his appearance on behalf of the respondent nos.5 to 7. The respondent nos.2.1 to 2.4 were represented by Mr. Ankit B. Pandya, learned advocate. Mr. Vimal A. Purohit, learned advocate had entered appearance on behalf of defendant nos.8 to 10. Though initially Mr. Alkesh N. Shah, learned advocate had appeared on behalf of the respondent nos.5 to 7, he was permitted to withdraw his appearance.
6. The Court, considering the subject matter involved, by order dated 18th July, 2017 had indicated the First Appeal to be heard finally, which was consented by the learned advocates appearing for the respective parties. The first appeal was thereafter rotated on the admission board for quite long. In light of the aforesaid order and the consent Page 3 of 27 Uploaded by RATHOD KAUSHIKSINH JILUSINH(HC00957) on Wed Apr 09 2025 Downloaded on : Wed Apr 09 22:15:11 IST 2025 NEUTRAL CITATION C/FA/763/2017 CAV JUDGMENT DATED: 07/04/2025 undefined expressed by the learned advocates for the respective parties, we have heard this appeal finally at the admission stage.
7. Ms. Megha Jani, learned advocate for the appellants at the outset has submitted that the learned Judge has committed gross error in invoking the provisions of Order-VII Rule-11(d) of the Code in the facts of the case by arriving at a conclusion that the suit of the plaintiff was barred by law of limitation. She has taken us through the facts of the case. It was pointed-out that the original plaintiff Bhanuben and the deceased defendant nos.1 and 2 are the real sister and brothers in relation. The suit properties as described in the plaint are various agricultural lands situated at village Tragad, Taluka & Dist. Ahmedabad, which originally belonged to their forefathers.
7.1 Our attention was invited to the paper-book tendered along with the appeal, wherein the relevant 7-12 extracts and revenue entries goes to indicate that the suit lands were running in the name of their father Shankarbhai Gokalbhai Patel. The pedigree produced on record suggests that their father had expired on 20 th June, 1966 and the mother had expired on 10th December, 1997. The family of deceased Shankarbhai Gokalbhai Patel consisted of the widow - wife - the original plaintiff Bhanuben and his two sons Kalidas Shankarbhai Patel and Manubhai Shankarbhai Patel - defendant nos.1 and 2 respectively. After the death of the father, the names of the aforesaid heirs and legal representatives including the name of the original plaintiff Page 4 of 27 Uploaded by RATHOD KAUSHIKSINH JILUSINH(HC00957) on Wed Apr 09 2025 Downloaded on : Wed Apr 09 22:15:11 IST 2025 NEUTRAL CITATION C/FA/763/2017 CAV JUDGMENT DATED: 07/04/2025 undefined was entered in the revenue record in respect of the suit lands vide mutation entry no.1014 dated 4th August, 1966.
7.2 While inviting our attention to the averments made in the plaint, she had submitted that the plaintiff was therefore having 1/3rd share in the suit lands and being a class-1 heir under the Hindu Succession Act, 1956 she was equally entitled to the share in the suit properties.
7.3 While referring to the revenue record, she had further pointed-out that the name of the original plaintiff had continued all throughout. It was only when a forged document of the statement of plaintiff Bhanuben dated 24 th February, 1978 produced before the Talati-cum-Mantri, Tragad the mutation entry no.1177 recording the aforesaid fact of release of her right over the ancestral land came to be posted in the revenue record.
7.4 At this juncture, Ms. Jani, learned advocate for the appellant had emphasized on the fact that the revenue record, which have been collected by the plaintiff subsequently, indicates that the notice u/s.135d was allegedly received by the plaintiff Bhanuben on the same day and on the same day, the statement of his two brothers - Kalidas and Manubhai were recorded by the Talati-cum-Mantri about the partition between the two brothers. The notice was served u/s.135(d) upon said Kalidas and Manubhai and the entry was thus certified on 3rd May, 1978 recording release of rights by the plaintiff Bhanuben and her mother.
Page 5 of 27 Uploaded by RATHOD KAUSHIKSINH JILUSINH(HC00957) on Wed Apr 09 2025 Downloaded on : Wed Apr 09 22:15:11 IST 2025NEUTRAL CITATION C/FA/763/2017 CAV JUDGMENT DATED: 07/04/2025 undefined 7.5 She had further pointed-out that specific averment was made in the plaint that the cause of action arose for the plaintiff to approach the Court for partition and other reliefs when she derived the knowledge that a false declaration in the form of her statement dated 24 th February, 1978 was considered for deletion of her name from the revenue record. It was pointed-out that the suit was filed in respect of 20 parcels of land as described in the plaint. Out of aforesaid 20 parcels of land, the agricultural land described at sr. no.1 bearing Revenue Survey no.67/3 was purchased by defendant nos.3 and 4 by registered sale deed dated 11 th June, 2009. Similarly, the agricultural land described at sr. no.4 bearing Revenue Survey no.146/2 was purchased by defendant nos.5, 6 and 7 by registered sale deed dated 16 th July, 2008 and the agricultural land described at sr. no.5 bearing Revenue Survey no.187/2 was purchased by defendant nos.8, 9 and 10 by registered sale deed dated 3 rd October, 2012. Since the aforesaid sale deeds were executed in respect of her undivided share without any payment or consideration to the plaintiff and on the basis of forged document, the aforesaid sale deeds were also challenged by the plaintiff. By referring to the aforesaid facts, she has submitted that in absence of any partition deed executed by the plaintiff, there was no partition in the eyes of law by metes and bounds. In such circumstances, the plaint was maintainable insofar as the declaration was sought for her share in the remaining parcels of land.
Page 6 of 27 Uploaded by RATHOD KAUSHIKSINH JILUSINH(HC00957) on Wed Apr 09 2025 Downloaded on : Wed Apr 09 22:15:11 IST 2025NEUTRAL CITATION C/FA/763/2017 CAV JUDGMENT DATED: 07/04/2025 undefined 7.6 The plaintiff Bhanuben came across one public notice dated 19th June, 2012 published in the newspaper seeking title clearance in respect to one of the suit land bearing Revenue Survey no.108/4/2. The plaintiff Bhanuben had immediately objected to the public notice by tendering her objections on 27th June, 2012. It is in light of the aforesaid development, the plaintiff had proceeded with the inquiry of the suit properties, which had led her to inquire about the revenue record, a copy of which was received by the plaintiff on 13 th March, 2013. Upon collecting the relevant documents, plaintiff had thereafter, approached the Court by filing suit on 12 th October, 2013.
7.7 She has therefore, submitted that even qua the aforesaid relief, if the plaint was partially maintainable, the learned Judge ought not to have rejected the whole plaint. Our attention was invited to the findings and the reasons assigned by the learned Judge. She has submitted that the learned judge committed serious error in observing that the period of limitation of 12 years, as applicable to a suit for partition, commences from 1978. She had pointed out that after the death of the father, Shankarbhai Gokalbhai Patel on 28.06. 1966 and her mother Kashi Ben on 10.12.1997, the plaintiff and defendant no.1 and 2 became joint owners of the suit properties. Therefore, the position of one of the co owners ought to have been considered as a position on behalf of all the joint owners. In the present case, the specific prayer was sought for partition of suit properties, inter se only after noticing the fraud committed by the defendant no.1 and 2. At Page 7 of 27 Uploaded by RATHOD KAUSHIKSINH JILUSINH(HC00957) on Wed Apr 09 2025 Downloaded on : Wed Apr 09 22:15:11 IST 2025 NEUTRAL CITATION C/FA/763/2017 CAV JUDGMENT DATED: 07/04/2025 undefined this stage, learned advocate had relied upon section 17 of the Limitation Act, 1963, to contend that when the knowledge of the right or title on which the suit is founded is concealed by fraud of the defendant, the period of limitation shall not begin to run until the plaintiff discovers the fraud. The reliance was also placed on Article 110 of the Limitation Act, 1963. Learned advocate had also raised contention that the learned Judge failed to appreciate the period of limitation for declaration to cancel or set aside an instrument is governed by Article 59 of the Limitation Act, 1963, whereby it provides a period of three years from the date of plaintiff knowledge of such instrument. She has therefore submitted that the plaintiff obtained the knowledge of such an instrument dated
01. 07. 2008, 11. 08.2009 and 03. 10. 2012, only when she could obtain the copies of revenue records in the month of April 2013, where she discovered a document dated 24. 02. 1978. She has further submitted that the learned Judge, therefore committed error in rejecting the plaint as barred by law of limitation by not appreciating the fact that the larger relief claimed by the plaintiff for partition of suit properties by metes and bounds was not barred by law of limitation and therefore could not have rejected the entire plaint.
7.8 According to her, the learned Judge on misconception of the facts that the plaintiff has not averred about the death of the brother, has belatedly claimed partition in the suit properties held by the heirs of her deceased brothers and some of the transferees as defendants, has passed the impugned order. With such observations, the learned Judge Page 8 of 27 Uploaded by RATHOD KAUSHIKSINH JILUSINH(HC00957) on Wed Apr 09 2025 Downloaded on : Wed Apr 09 22:15:11 IST 2025 NEUTRAL CITATION C/FA/763/2017 CAV JUDGMENT DATED: 07/04/2025 undefined has arrived at a conclusion that she had already waived her right of inheritance in the suit property of her deceased father. While referring to the aforesaid observations, she had vehemently submitted that such conclusion drawn by the learned Judge amounts to adjudication on merits of the case and it is a settled position of law that at the stage of order VII rule 11 the Court has to confine to the averments made in the plaint. In the present case, the plaintiff had specifically averred that she became aware about the intention of the defendants of depriving her from her right to inheritance in the suit properties when she came across to a public notice in daily newspaper on 19th June, 2012. Thereafter, she has also pleaded the necessary facts explaining the time consumed in obtaining the relevant records and having obtained so, she has promptly approached the competent Court. She has therefore submitted that upon reading of the averments made in the plaint, when a specific case of fraud was pleaded by her, it was a case of mix question of facts and law and not a pure question of law to be treated as barred by law of limitation. She had further pointed-out that except for defendant nos.5, and 7, none of the other defendants have preferred any application for rejection of the plaint. The dispute between plaintiff and defendant nos.5, 6 and 7 has been amicably resolved out of the Court. She had therefore submitted that the suit is required to be tried on its own merits. In support of her aforesaid submissions, learned advocate for the appellant had relied upon the decision of Hon'ble Supreme Court in case of Chotanben and another Vs. Kiritbhai Jalkrushanbhai Thakkar and others, 2018 Page 9 of 27 Uploaded by RATHOD KAUSHIKSINH JILUSINH(HC00957) on Wed Apr 09 2025 Downloaded on : Wed Apr 09 22:15:11 IST 2025 NEUTRAL CITATION C/FA/763/2017 CAV JUDGMENT DATED: 07/04/2025 undefined 6 SCC 422. While referring to the facts of the case, she had pointed-out that this was the case where the sale deed of 1996 was challenged in the year 2013 wherein the plaintiff had specifically asserted in the plaint that they had no knowledge about the execution of sale deed till the year 2013. As soon as they came to know from the community members, the certified copy of the sale deed was obtained and on receipt of such copy, the plaintiff had become aware of the fraud played by real brothers in the ancestral property. Though the Trial Court had rejected the application under Order-VII Rule-11, the same was reversed by the High Court and in an appeal before the Supreme Court, the aforesaid decision of the High Court was reversed and the order of Trial Court was restored.
7.4 She had also relied upon the decision of Hon'ble Supreme Court in case of P.V. Gururaj Reddy and others Vs. P. Niradha Reddy & another - 2015 8 SCC 331. In similar circumstances challenging the sale deed of 1979 in the year 2002, the plaintiff claimed to have derived the knowledge in the year 1999. The Supreme Court set aside the order of the High Court rejecting the plaint holding that the suit was not barred by limitation. In another decision of Hon'ble Supreme Court in case of Daya Singh & anr. Vs. Gurudev Singh - 2010 2 SCC 194, Ms. Jani, learned advocate for the appellant had submitted that in the aforesaid case, suit was filed almost after 18 years of the alleged compromise. Initially, the Courts below had not entertained the suit, as well as, the appeal and the second appeals. The matter travelled to the Supreme Court, whereby the orders of the Court below Page 10 of 27 Uploaded by RATHOD KAUSHIKSINH JILUSINH(HC00957) on Wed Apr 09 2025 Downloaded on : Wed Apr 09 22:15:11 IST 2025 NEUTRAL CITATION C/FA/763/2017 CAV JUDGMENT DATED: 07/04/2025 undefined were set aside and the matter was remitted back to the High Court for decision on merits. The Court noticed that a specific statement was made by the plaintiff in the plaint that it was only a week before that the plaintiff first became aware about the wrong entries recorded in revenue records and therefore, the question of holding that the suit was barred by limitation was not entertained.
7.5 By referring to the aforesaid legal position, Ms. Jani, learned advocate for the appellant had submitted that the learned Judge committed serious error in holding that by efflux of time, the plaintiff had acquiesce of her right to seek partition of the suit property. It was submitted that there cannot be any acquiesce of legal right to seek partition in an ancestral land by efflux of time. On the issue of fraud, learned advocate had invited our attention to the so-called statement of the plaintiff dated 19 th February, 1978 whereby, it was claimed that the plaintiff had released her share in the suit properties. It was submitted that the opinion of the forensic document expert was called for and prima facie the opinion of the expert suggests that the sign of the plaintiff does not match with the natural signature of the plaintiff. In such circumstances, the learned Judge ought to have permitted the plaintiff to proceed with leading of the evidence to establish her case of forged document being created.
7.6 On the issue of partition between the brothers, as reflected in the revenue entry no.1177 is concerned, it was pointed-out that the alleged statement recorded before the Page 11 of 27 Uploaded by RATHOD KAUSHIKSINH JILUSINH(HC00957) on Wed Apr 09 2025 Downloaded on : Wed Apr 09 22:15:11 IST 2025 NEUTRAL CITATION C/FA/763/2017 CAV JUDGMENT DATED: 07/04/2025 undefined Talati cannot partake character of a registered document crystallizing the rights of the heirs in the ancestral properties. The reliance was placed on the decision of Hon'ble Supreme Court in case of Sitaram Bhama Vs. Ram Avtar Bhama, reported in 2018 15 SCC 130 to contend that partition can only be effected by a registered deed. She had further pointed-out that the learned Judge had not appreciated the fact that mere recording of the mutation entry in the revenue record would not take-away the succession right of the plaintiff, which she had otherwise acquired in view of Section
- 6 of the Hindu Succession Act. Indisputedly, the name of the plaintiff was entered as one of the co-owner of the suit properties along with her brothers as coparceners as recorded in mutation entry no.1014 dated 4 th August, 1966, pursuant to which the name of the plaintiff Bhanuben had continued in the revenue record for more than a decade. The hasty manner in which the name of the plaintiff was removed from the revenue record ought to have been taken into consideration by the learned Judge to examine the issue of limitation more closely. She had further submitted that mere mutation of the names of the co-sharer brothers would not automatically exclude the other co-sharers from the ancestral properties. The reliance was placed on the decision of Hon'ble Supreme Court in the case of Darshan Singh & others Vs. Gurjar Singh, reported in 2002 2 SCC 62 para-9 and in the case of Annasaheb Bapusaheb Patel Vs. Balvant, reported in 1995 2 SCC 523 - relevant para nos.16 and 17.
Page 12 of 27 Uploaded by RATHOD KAUSHIKSINH JILUSINH(HC00957) on Wed Apr 09 2025 Downloaded on : Wed Apr 09 22:15:11 IST 2025NEUTRAL CITATION C/FA/763/2017 CAV JUDGMENT DATED: 07/04/2025 undefined 7.7 Ms. Jani, learned advocate for the appellant had lastly submitted that the challenge to the sale deeds dated 11 th June, 2009, 16th July, 2008 and 3rd October, 2012 is the consequential relief to the substantial relief of partition prayed for. She had therefore submitted that even assuming that the challenge to the aforesaid sale deeds is barred by period of limitation, the Court ought not to have rejected the plaint if the suit is found maintainable qua some of the reliefs. The reliance was placed on the decision of the Hon'ble Supreme Court in case of Sejal Glass Ltd., Vs. C.S. Navilal Merchant Pvt. Ltd., 2018 11 SCC 780 - paras 2 and 8. By making the aforesaid submissions, learned advocate for the appellant had urged to allow this appeal and to quash and set aside the impugned order rejecting the plaint at the threshold under Order-VII Rule-11 of the Code.
8. Mr. Vimal Purohit, learned advocate for the respondent nos.9 and 10, at the outset had submitted that the impugned order passed below Exh.78 is a valid, well reasoned and devoid of any infirmities in strict conformity of the provisions of law and established judicial pronouncements, which calls for no interference in the present appeal. In order to make good his case, learned advocate had invited our attention to the fact that the respondent no.3 is a bonafide purchaser of one of the suit lands bearing Revenue Survey no.187/2. It was pointed-out that after paying full consideration and upon verifying the revenue record, which reflected the name of the defendant nos.1 and 2 only, has entered into the sale transaction.
Page 13 of 27 Uploaded by RATHOD KAUSHIKSINH JILUSINH(HC00957) on Wed Apr 09 2025 Downloaded on : Wed Apr 09 22:15:11 IST 2025NEUTRAL CITATION C/FA/763/2017 CAV JUDGMENT DATED: 07/04/2025 undefined 8.1 Mr. Vimal Purohit, learned advocate for the respondent nos.9 and 10, who are subsequent purchasers of one of the suit property bearing Revenue Survey no.67/3 has submitted that initially the aforesaid land was purchased by the respondent no.3 by a registered sale deed. It was submitted that it is an undisputed fact that though initially the name of the plaintiff was entered as co-sharer by mutation entry no.1074 dated 1st April, 1966, her name was continued only for 12 years as thereafter pursuant to the statement recorded before the Talati, the name of the plaintiff was removed on the ground that she had relinquished her right in the said property. It was therefore submitted that the name of the plaintiff has thereafter been discontinued since the year 1978.
8.2 It was submitted that the allegation of the statement before Talati-cum-Mantri being forged and she having no knowledge about such mutation entry, the plaintiff has tried to create an illusory cause of action in order to bring her suit within the period of limitation. It was further submitted that even upon appreciation of the dates of events, it is crystal clear that the suit has been brought after the delay of almost 35 years from the date when the actual cause of action arose. It is an undisputed fact that the father of the plaintiff and defendant nos.1and 2 had expired on 20 th June, 1966 and mutation entry relinquishing her right came to be mutated in the year 1978. Whereas, the present suit was filed seeking partition in respect of the suit properties only in the year 2013 i.e. on 12th October, 2013. It was further submitted that the Page 14 of 27 Uploaded by RATHOD KAUSHIKSINH JILUSINH(HC00957) on Wed Apr 09 2025 Downloaded on : Wed Apr 09 22:15:11 IST 2025 NEUTRAL CITATION C/FA/763/2017 CAV JUDGMENT DATED: 07/04/2025 undefined plaintiff was aged about 78 years at the time of filing of the suit. As rightly noticed by the learned Judge, she did not object to her deletion of name all throughout since the year 1978. Even during the lifetime of her brothers, she did not pressed for partition. It was submitted that the defendant no.1 Manubhai has expired on 23 rd May, 2002 and the mother has expired on 10th December, 1997.
8.3 On the aspect of forgery, learned advocate had submitted that bare appreciation of the revenue record produced before the Trial Court goes to suggest that Talati- cum-Mantri has followed the due process of law and has thereafter removed the name of plaintiff. Even otherwise, by efflux of time, the plaintiff has acquiesce her right to get partition in the suit properties. According to him, bare reading of cause of action is nothing but a smart drafting to bring the suit within the period of limitation by making vexatious statements/averments in the plaint with an effort to create illusory cause of action. Reliance was placed on the decision of the Hon'ble Supreme Court in the case of Dahiben v. Arvindbhai Kalyanji Bhanusali (2020) 7 SCC 366 in support of his submission.
8.4 Having referred to the aforesaid merits of the case, learned advocate had invited our attention to Article 58 the Limitation Act, 1963 to contend that the plaintiff ought to have filed suit within the period of three years from the date when the mutation entry no.1177 dated 24 th February, 1978 recording her relinquishment of right in the properties was Page 15 of 27 Uploaded by RATHOD KAUSHIKSINH JILUSINH(HC00957) on Wed Apr 09 2025 Downloaded on : Wed Apr 09 22:15:11 IST 2025 NEUTRAL CITATION C/FA/763/2017 CAV JUDGMENT DATED: 07/04/2025 undefined recorded in the revenue record. It was submitted that the revenue record is a public document in view of the provisions of Evidence Act and the plaintiff cannot be permitted to contend that she was not aware about such entry being recorded. Reference was also made to Article 65 of the Limitation Act, 1963 to contend that the defendant nos.1 and 7 and thereafter their heirs and legal representatives since the year 1978 had continued to be in possession. At no stage, any evidence had been brought on record to suggest that the share in the crop was derived by the plaintiff and she has no reason to disbelieve about her right as co-parceners being extinguished. In such circumstances, as per Article 65 of the Limitation Act, 1963 the suit ought to have been filed within the period of 12 years from the date of the aforesaid mutation entry no.1177 dated 24 th February, 1978. Reliance was placed on the unreported decision of this Court in the case of Kailashben Mathurbhai Patel Vs. Gandabhai Mathurbhai Patel judgment and order dated 6 th July, 2017 passed in First Appeal no.3168 of 2017. It was pointed-out in an identical fact, where initially the names were entered and thereafter removed on the basis of relinquishment deed, later on the entries were disputed, the order passed under Order-VII Rule-11 challenged in appeal was examined by the learned Single Judge. The Court has observed in para-6 that such an entry relinquishing interest cannot be challenged by a suit after almost 32 years. The reliance was also placed on the decision of the coordinate bench of this Court in the case of Shardaben daughter of Dhavalbhai Maganbhai Patel, widow of Nalinbhai Narottambhai Patel Vs. Legal heirs Page 16 of 27 Uploaded by RATHOD KAUSHIKSINH JILUSINH(HC00957) on Wed Apr 09 2025 Downloaded on : Wed Apr 09 22:15:11 IST 2025 NEUTRAL CITATION C/FA/763/2017 CAV JUDGMENT DATED: 07/04/2025 undefined of Natvarbhai D. Patel - the judgment and order dated 18 th December, 2023 passed in First Appeal no.5014 of 2022, wherein the Court refused to entertain the appeal preferred by the sister claiming rights over the ancestral property after gross delay, after relinquishing her right in favour of her brothers.
8.5 Learned advocate has also placed reliance upon the judgment of Hon'ble Supreme Court in case of C.S. Ramaswami Vs. V.K. Senthil & others passed in Civil Appeal no.500 of 2022 dated 30th August, 2022 to contend that mere averment of fraud being played is not sufficient. It was submitted that the manner in which the fraud was committed must be specifically averred in the plaint. It was also submitted that even for cancellation or for declaration of any registered document to be null and void, the suit is required to be preferred within the period of three years from the date of such registration of document. The reliance was placed on the decision of Hon'ble Supreme Court in case of Dimbu (dead) by legal heirs Vs. Dhanraj, 2000 (7) SCC 702 - Jhaverbhai Patel Vs. Jashbhai Shivabhai Patel, 2013 1 GLR 398, wherein the Courts have held that the registered document itself amounts to deemed knowledge of the existence of such transaction. Lastly, the learned advocate has relied upon the decision of Hon'ble Supreme Court in case of N.V. Srinivasa Murthy and Others Vs. Mariyamma (Dead) by Proposed Lrs. and Others reported in 2005 (5) SCC 548 to contend that the Courts are empowered under Order-VII Rule-11 to dismiss a suit by Page 17 of 27 Uploaded by RATHOD KAUSHIKSINH JILUSINH(HC00957) on Wed Apr 09 2025 Downloaded on : Wed Apr 09 22:15:11 IST 2025 NEUTRAL CITATION C/FA/763/2017 CAV JUDGMENT DATED: 07/04/2025 undefined rejection of plaint, if upon bare reading of the averments made in the plaint, it appears to be barred by any provision of law. By referring to the aforesaid facts, the learned advocate has submitted that clearly the suit was barred by law of limitation and the learned Court has rightly dismissed the suit at threshold by invoking Order-VII Rule-11(d) of the Code.
9. Mr. Tattvam Patel, learned advocate appearing on behalf of the respondent no.3 has fairly conceded that pending the present appeal, the plaintiff has arrived at amicable settlement with original defendant nos.5 to 7, who has sold their part of the suit property in respect of Revenue Survey no.146/2 pending the appeal and the plaintiffs have confirmed such sale deeds. He has further pointed-out that so far as the respondent no.3 is concerned, he is a bonafide purchaser of one of the suit property bearing Revenue Survey no.67/3 by a registered sale deed dated 11 th June, 2009 from the defendant nos.1 and 2, who are the real brothers of the original plaintiff.
9.1 While adopting the submissions made by Mr. Vimal Purohit, learned advocate appearing for the respective respondent nos.8 to 10, Mr. Patel, learned advocate had pointed-out that apart from the fact that the name of plaintiff was removed from the entire revenue record as referred in the plaint at Mark-6/3 to 6/24, the brothers have thereafter obtained loan from Gujarat State Co-operative Development Bank, which can be noticed from the mutation entry no.2084 and such loan was later on repaid by the brothers as can be noticed from the revenue entry no.2095 dated 6 th May, 1987.
Page 18 of 27 Uploaded by RATHOD KAUSHIKSINH JILUSINH(HC00957) on Wed Apr 09 2025 Downloaded on : Wed Apr 09 22:15:11 IST 2025NEUTRAL CITATION C/FA/763/2017 CAV JUDGMENT DATED: 07/04/2025 undefined He had further pointed-out that thereafter another mutation entry bearing no.2634 was posted mutating names of heirs of deceased - brother - Kailashbhai, which was certified during the lifetime of the original plaintiff. Again the relevant entries of the respective sale deeds of few of the suit properties were also posted in the revenue record. It was pointed-out that in fact pursuant to the sale deed execution in favour of the respondent no.3, the relevant mutation entry was entered on 5th October, 2009, which was certified on 3 rd January, 2010. Thereafter, on 20th July, 2010, the respondent had obtained NA use permission. Such a fact can be noticed from the revenue entry no.3190 dated 4 th August, 2010. Based on such permission being granted, the respondent no.3 has also started with the construction work on the said parcel of land. He had therefore, submitted that no relief can be entertained qua the cancellation of his sale deed after efflux of time beyond the prescribed period of limitation. It was further pointed-out that even assuming for the sake of arguments that on 19th June, 2012, the defendant nos.2/1 to 2/4 had issued public notice inviting title clearance certificate in respect of one of the parcel of land bearing Revenue Survey no.108/4/2 and the original plaintiff having objected to such notice on 27 th June, 2012, then also after the period of almost 1½ years, the original plaintiff had preferred Special Civil Suit only on 12 th October, 2013.
9.2 By referring to the aforesaid events, learned advocate has submitted that as per Article 59 of the Limitation Act, the time limit prescribed for filing a suit seeking cancellation of Page 19 of 27 Uploaded by RATHOD KAUSHIKSINH JILUSINH(HC00957) on Wed Apr 09 2025 Downloaded on : Wed Apr 09 22:15:11 IST 2025 NEUTRAL CITATION C/FA/763/2017 CAV JUDGMENT DATED: 07/04/2025 undefined registered document is three years and even in case of seeking share in the suit property is three years as prescribed under Article 110 of the Limitation Act. Thus, considering the aforesaid provisions also the suit is clearly time barred and has rightly not been entertained by the learned Judge by resorting to the powers conferred under Order-VII Rule-11(d) of the Code. According to him, the brothers of the original plaintiff, who had in fact executed the sale deeds in favour of the respective respondents have not preferred any suit seeking cancellation of such sale deeds. On the other hand, the plaintiff at the most could have filed suit for partition in respect of the properties retained by the heirs and the legal representatives of the deceased brother. The consolidated suit filed by the original plaintiff is thus nothing but a malafide attempt on the part of the plaintiff for extraneous considerations to club the relief and thereafter to contend that once the suit is found partially maintainable, the plaint as a whole is maintainable.
9.3 While referring to the cause of action as averred in the plaint, learned advocate had submitted that the explanation offered by the plaintiff is not at all plausible and except for bald averments, the false, misleading, incomplete and frivolous averments are made only with a purpose to bring the suit within the prescribed period of limitation. Learned advocate had placed reliance on the following decision in support of his case:-
1. (2000)7 SCC 702 - Smt. Dilboo (Dead) By Lrs. & Ors vs Page 20 of 27 Uploaded by RATHOD KAUSHIKSINH JILUSINH(HC00957) on Wed Apr 09 2025 Downloaded on : Wed Apr 09 22:15:11 IST 2025 NEUTRAL CITATION C/FA/763/2017 CAV JUDGMENT DATED: 07/04/2025 undefined Smt. Dhanraji (Dead) And Ors- para-20
2. (2020) 7 SCC 366 - Dahiben vs. Arvindbhai Kalyanji Bhanusali (Gajara) (D) through Lrs paras-14 to 16
3. (2020) 16 SCC 601 - Raghwendra Sharan Singh vs. Ram Prasanna Singh para-7
4. First Appeal no.1547 of 2020 --- paras - 10, 11.1 to 11.6 By making the aforesaid submissions, learned advocate has urged not to entertain the present appeal and to upheld the impugned order passed by the learned Judge dismissing the suit.
10. In rejoinder, Ms. Jani, learned advocate for the appellant has invited our attention to the relevant observations of the Hon'ble Supreme Court in case of Dahiben(supra) as relied upon by the other side. It was submitted that it was a case where the sellers have challenged the sale deed on the ground of non-payment of consideration. The Court upon appreciation of the facts of the case in light of the documents produced on record observed that at no point of time during the period of five years after the execution of sale deed, the plaintiffs have raised grievance about non-receipt of consideration whereas the sale deed recitals mentions about the payment of sale consideration through 36 cheques. As against that, there was no averment in the plaint that the cheques were not received by them. Whereas the plaintiff had received notice under Section 135(d) to which no objections were raised. It is in the background of these facts, the Hon'ble Supreme Court found the suit as not maintainable beyond the prescribed period of Page 21 of 27 Uploaded by RATHOD KAUSHIKSINH JILUSINH(HC00957) on Wed Apr 09 2025 Downloaded on : Wed Apr 09 22:15:11 IST 2025 NEUTRAL CITATION C/FA/763/2017 CAV JUDGMENT DATED: 07/04/2025 undefined three years from the date of registration of the sale deed. She had therefore submitted that the aforesaid decision would not be applicable in the facts of the present case, more particularly when the fraud is not only pleaded but has been prima facie established by leading cogent material in the form of expert opinion being placed for consideration. She has therefore prayed for restoring the suit and remanding the matter for trial.
11. We have heard learned advocates appearing for respective parties at length and have examined their arguments in light of the legal position as carved out in the various decisions relied upon. The only question which arises for our consideration is whether the learned Judge committed any error in facts or / and in law in rejection of plaint at threshold by invoking Order VII Rule 11(d) of the Code of Civil Procedure , 1908, on the ground of suit being barred by the provisions of Limitation Act, 1963,in the facts and circumstances of the case.?
12. Considering the submissions of the learned advocates for the respective parties, to look into the issue of limitation, we have closely examined the pleadings of the plaint along with cause of action and prayers sought for in the suit. The core contention of the plaintiff is that statement dated 24.02.1978 before Talati is a forged document in as much as the signature of the plaintiff on such statement is false, bogus, forged and concocted and therefore there was no relinquishment of the rights from the suit lands. The plaintiff Page 22 of 27 Uploaded by RATHOD KAUSHIKSINH JILUSINH(HC00957) on Wed Apr 09 2025 Downloaded on : Wed Apr 09 22:15:11 IST 2025 NEUTRAL CITATION C/FA/763/2017 CAV JUDGMENT DATED: 07/04/2025 undefined has pleaded that cause of action arose only when she came across a public notice dated 19th June, 2012 in respect of one of the subject land, when she realised about denial of her right in the ancestral lands and had to approach the revenue office to collect the 7/12 copies. Interestingly, out of three sale transactions challenged, the first in point of time is a registered sale deed executed on 11th June, 2009, which is three years prior to the date on which the public notice dt. 19.06.2012 came to be notified. Therefore, the cause of action arose for the plaintiff to approach a competent court for not only seeking cancellation of sale deeds but also for seeking her share in the suit properties by seeking relief for partition. Law with regard to consideration of application under Order VII Rule 11 of Code of Civil Procedure is very clear. For appreciation of contention in application only plaint averments can be taken into account. For said purposes, every assertion in the plaint has to be presumed to be correct. In our view, a possible case has been pleaded by the plaintiff which calls for scrutiny by appreciation of evidence. More so, when it was her specific case before the Court that she was not served with any notice under section 135(d) of the Land Revenue Code while her name came to be deleted from the revenue record on the ground that she had released her rights qua suit lands in favour of her brothers. There are specific averments made in the plaint in this regard whereby the plaintiff has pleaded that the forged signature has been stated to have been endorsed on the statement dated 19th February, 1978 releasing her right was recorded. It is also the case of plaintiff that the notice under section 135(d) was served upon Page 23 of 27 Uploaded by RATHOD KAUSHIKSINH JILUSINH(HC00957) on Wed Apr 09 2025 Downloaded on : Wed Apr 09 22:15:11 IST 2025 NEUTRAL CITATION C/FA/763/2017 CAV JUDGMENT DATED: 07/04/2025 undefined Defendant no. 1 and 2. In our view, a triable issue of fact arises for consideration as to whether the plaintiff had been served with section 135 (d) notice.? Whether the statement recorded on 19th February, 1978 would be sufficient compliance with provisions of Transfer of Property Act to treat it as a lawful transaction acknowledging release of rights by a co-owner from ancestral lands.? We cannot ignore the material place for consideration, the expert opinion which suggests that the signature is forged, which is required to be tested in light of provisions of Evidence Law.
13. This brings us to the issue of the Limitation Act, more particularly, the starting point of limitation for maintaining a suit for partition. Looking to the multifold prayers sought for, in our opinion the prayer of share and partition in respect of suit properties can be considered as substantial prayer, in as much as , in respect of subject lands being subsequently sold, the prayer for cancellation of instrument would arises for consideration if in case the plaintiff is able to establish her right in the suit properties. Perusal of Article 110 of Limitation Act would indicate that limitation of 12 years would begin to run from date of accrual of knowledge of said sale. Again, for cancellation of instrument, the period as prescribed under Article 59 is 3 years from the date of accrual of knowledge of such instrument. Applying the aforesaid provisions in light of the facts pleaded in the plaint, in our view, the date of accrual of knowledge derived by the plaintiff by virtue of public notice dated 19.06.2012 constraining her to verify the revenue entries on 13.03.2013, which led to the Page 24 of 27 Uploaded by RATHOD KAUSHIKSINH JILUSINH(HC00957) on Wed Apr 09 2025 Downloaded on : Wed Apr 09 22:15:11 IST 2025 NEUTRAL CITATION C/FA/763/2017 CAV JUDGMENT DATED: 07/04/2025 undefined discovery of the fact of she being excluded from her right of share in the ancestral properties. Additionally, the plaintiff has averred fraud by making specific averments and has also led cogent material in the nature of expert opinion. Section 17 of the Limitation Act deals with the effect of fraud on the limitation period for instituting a suit. It says that when the suit is based on the fraud committed by the defendant, the period of limitation shall not begin to run until the plaintiff or applicant has discovered the fraud. Thus, the learned Judge committed serious error in considering 1978 as the starting point for the limitation period of 12 years to maintain the suit for partition. In fact as rightly pointed out by learned advocate for the appellant, treating entry no. 1177 of 1978 as starting point of limitation while considering the application of order VII rule 11 would amount to accepting the defence that the property was partitioned in the year 1978 as recorded in the entry no.1177.
14. Even otherwise, neat question of law falls for consideration looking to the rival submissions made by the parties as to whether the manner and mode adopted of deletion of name from revenue record, can be accepted as valid relinquishment or extinguishment of right, title and interest in an immovable property as well as to whether the court of law recognise such a unregistered document in the form of declaration cum statement to be valid to be read as evidence to arrive at such a conclusion about existence of proof of relinquishment.? Whether mere recording of entry based on interse arrangement between family members Page 25 of 27 Uploaded by RATHOD KAUSHIKSINH JILUSINH(HC00957) on Wed Apr 09 2025 Downloaded on : Wed Apr 09 22:15:11 IST 2025 NEUTRAL CITATION C/FA/763/2017 CAV JUDGMENT DATED: 07/04/2025 undefined acknowledging partition is valid in the eyes of law.? Apt would be to refer to the legal position in this regard. The law is well settled in view of the decision of the Hon'ble Supreme Court in the case of Yellapu Uma Maheshwari vs. Buddha Jagadheeswararao, reported in 2015 (0) AIJEL-SC 57186, wherein it has been held that relinquishment has to be by a registered document. In the case of Sita Ram Bhama (supra) as relied upon by the learned advocate for the appellant, any transfer of right in an immovable property is required to be compulsory registered. In the facts of the present case, indisputably there is no registered document produced by the defendants to show that the plaintiff has relinquished her share from the suit lands by any registered instrument. Again, it is a settled proposition of law As held by the Hon'ble Supreme Court in the case of Jitendra Singh vs. State of Madhya Pradesh, 2021 SCC Online SC 802, that the revenue entries are only for fiscal purposes and such revenue entries do not take away or confer any right, title or interest.
15. In light of the aforesaid rigours of law involved, we are of the view that the issue of limitation in the facts and circumstances of the case is a mixed question of facts and law and is therefore a triable issue, which could have been dealt with by the Court only after the evidence was closely scrutinised. Having held so, considering the legal position enunciated by the Hon'ble Supreme Court in the case of Chhotanben & Anr Vs. Kiritbhai Jalkrushnabhai Thakkar & Ors., reported in (2018) 6 SCC 422, the plaint cannot be rejected by exercising powers under Order VII, Rule 11 in a Page 26 of 27 Uploaded by RATHOD KAUSHIKSINH JILUSINH(HC00957) on Wed Apr 09 2025 Downloaded on : Wed Apr 09 22:15:11 IST 2025 NEUTRAL CITATION C/FA/763/2017 CAV JUDGMENT DATED: 07/04/2025 undefined partition suit, more so when the issue of limitation is a mixed question of fact and law which have to be considered at the time of trial.
16. For the foregoing reasons, the impugned judgment and order dated 23rd December, 2016 passed by the learned Principal Senior Civil Judge, Ahmedabad Rural at Mirzapur in Special Civil Suit no.607 of 2013 , is hereby quashed and set aside. The Special Civil Suit no. 607 of 2013 is directed to be restored to it's original file. The present First Appeal stands allowed to the aforesaid extent.
In view of disposal of First Appeal, Civil Application also stands disposed of.
(BIREN VAISHNAV,ACJ) (NISHA M. THAKORE,J) RATHOD KAUSHIKSINH Page 27 of 27 Uploaded by RATHOD KAUSHIKSINH JILUSINH(HC00957) on Wed Apr 09 2025 Downloaded on : Wed Apr 09 22:15:11 IST 2025