Madhya Pradesh High Court
Smt. Pushpa Devi vs Giridhar Gopal Rathi on 25 April, 2018
HIGH COURT OF MADHYA PRADESH, BENCH AT INDORE
Civil Revision No.619/2017
(Smt. Pushpa Devi & Anr. Vs. Girdhar Gopal Rathi & Anr.)
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Indore, dated 25/04/2018
Shri Veer Kumar Jain, learned senior counsel with Shri
Vaibhav Jain, learned counsel for the applicants.
Shri Mahendra Kumar Vijayvargiya, learned counsel for
the respondents.
The applicants before this Court has filed present revision under Section 115 of the Code of Civil Procedure, 1908 against order dated 09/08/2017 passed by XII Civil Judge, Class-II, Indore in Civil Suit No.257-A/2017 by which the application preferred under Order VII Rule 11 of the CPC has been dismissed. 02- The facts of the case reveal that the respondent No.1 Girdhar Gopal Rathi, who is plaintiff before the trial Court, has filed a suit for declaration and for grant of permanent injunction, only by stating that the suit property was bearing No.274/1, Sajan Nagar, Indore was of the ownership of one Shri Gourishankar Sharma and on 20/09/1994 an agreement to sale was executed and it has been stated in the plaint that though the agreement was in the name of Gourishankar Sharma, the property was to be purchased in the name of three brothers namely Girdhar Gopal Rathi, Rameshchand Rathi and Kailash Chandra Rathi.
03- It has been further stated that there was some dispute in respect of the property which was subject matter of the suit and HIGH COURT OF MADHYA PRADESH, BENCH AT INDORE Civil Revision No.619/2017 (Smt. Pushpa Devi & Anr. Vs. Girdhar Gopal Rathi & Anr.) -2- in respect of 1994 agreement a civil suit has been filed in the year 2017. It has been stated that public notice was issued in respect of sale of property by the defendants (present petitioners) and as it came to the knowledge of the plaintiff that the defendant No.1 has purchased the property from Gourishankar Sharma, the civil suit has been filed.
04- A declaration has been sought that by the plaintiff that he is ⅓rd owner of the suit property. A relief of permanent injunction has also been sought restraining transfer of property and Court fees of Rs.500/- has been paid in respect of declaration and Court fees of Rs.120/- has been paid for grant of permanent injunction. 05- The facts of the case reveal that original owner of the property in question was one Gourishankar. He has entered into an agreement of sale on 20/09/1994 in favour of Pushpa Devi and Rajesh Rathi who are the defendants before the trial Court. Finally sale deed was executed on 19/12/1997.
06- The another important aspect of the case is that suit property was mortgaged with State Bank of India and the factum of mortgage was concealed by Gourishankar Sharma and therefore, the State Bank of India started proceedings before the Debt Recovery Tribunal by filing a Original Application and the property HIGH COURT OF MADHYA PRADESH, BENCH AT INDORE Civil Revision No.619/2017 (Smt. Pushpa Devi & Anr. Vs. Girdhar Gopal Rathi & Anr.) -3- was attached under the The Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002. 07- The present applicants who are defendants in the civil suit were also served with a notice under Section 14 of the The Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 and an appeal was preferred by them before the Debt Recovery Tribunal. The appeal was dismissed by the Debt Recovery Tribunal on 01/12/2005 and thereafter, an appeal was preferred before the appellate Tribunal and it was also dismissed on 04/03/2011.
08- The present applicants who are defendants thereafter, preferred a writ petition which was registered as Writ Petition No.3422/2011 and stay was granted in the writ petition, however, while the writ petition was pending, the State Bank of India and the present applicants, who are defendants entered into a compromise, even though the present applicants have purchased the property by paying full consideration to Gourishankar Sharma again paid a sum of Rs.90 Lacs to the State Bank of India and the papers were returned back by the State Bank of India to the present applicants.
09- After the title become clear, the plaintiff woke up from HIGH COURT OF MADHYA PRADESH, BENCH AT INDORE Civil Revision No.619/2017 (Smt. Pushpa Devi & Anr. Vs. Girdhar Gopal Rathi & Anr.) -4- slumber and the only ground on which a ⅓rd share is being claimed in the suit property is that at some point of time, the plaintiff Girdhar and his two brothers have agreed to purchase property jointly in the year 1994.
10- There is a specific averment made in the plaint that in the year 1994 the plaintiff along with his two brothers wanted to purchase the property and an agreement was executed. There is no evidence on record in respect of any such agreement in which the plaintiff was a party. On the contrary the agreement was in favour of Smt. Pushpa Devi Rathi and Rajesh Rathi. Thereafter, a sale deed was executed on 01/12/1997. It was again executed by Gourishankar Sharma in favour of Smt. Pushpa Devi Rathi and Rajesh Rathi. The Plaintiff was not in picture. By making an averment that he was also taken into confidence to purchase the property, the plaintiff who does not have any right over the property in question, is raising a claim.
11- Not only this, the matter has travelled to Debt Recovery Tribunal and to the appellate Tribunal and even to this High Court, the plaintiff did not participated in any of the proceedings stating that he is also a stake holder in the property. 12- The apex Court in the case of T. Arivandandam Vs. T. V. Satyapal and Another reported in AIR 1977 SC 2421 has held HIGH COURT OF MADHYA PRADESH, BENCH AT INDORE Civil Revision No.619/2017 (Smt. Pushpa Devi & Anr. Vs. Girdhar Gopal Rathi & Anr.) -5- that such bogus litigation can be shot down at the earliest stage. Paragraph No.5 of the aforesaid judgment reads as under:-
"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, be should exercise his power under Or. VII r. 1 1 C.P.C. 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 X C.P.C. An activist Judge is the answer to irresponsible law suits. The trial court should insist imperatively on examining the party at the first bearing so that bogus litigation can be shot down at the earliest stage. The Penal Code (Ch. XI) is also resourceful enough to meet such men, and must be triggered against them. In this case, the learned Judge to his cost realised what George Bernard Shaw remarked on the assassination of Mahatma Gandhi "It is dangerous to be too good."
In light of the aforesaid judgment, this Court is not hesitant in holding that present plaint filed by the respondent No.1 is nothing but a bogus litigation filed without substance in it. From the plaint averments, no case is made out at all. 13- In the case of Neelam Kumar Bachani and Another Vs. Bhishamlal reported in 2013 (4) MPLJ 117, a loan was advanced on 15/05/2009 and suit ought to have been filed up to 14/05/2012 and the suit was filed on 23/08/2012. As it was barred by limitation and in those circumstances the application preferred under Order VII Rule 11 of the CPC was allowed. Paragraphs No.8 HIGH COURT OF MADHYA PRADESH, BENCH AT INDORE Civil Revision No.619/2017 (Smt. Pushpa Devi & Anr. Vs. Girdhar Gopal Rathi & Anr.) -6- and 10 of the aforesaid judgment reads as under:-
"8. This leads no doubt that specific limitation prescribed under the Schedule of the Limitation Act are to be specifically followed. As has been referred to hereinabove, limitation for filing of the suit based on payment of money by cheque, the period of limitation is three years from the date when the cheque is paid. Admittedly, in the present case, the said date was 15-5-2009, as set forth in the plaint itself. As prescribed in section 35 of the limitation act, the period of repayment of the loan amount on the basis of the bill of exchange or promissory note was to be specifically written. A restrain was to be put postponing the right to sue from the date of payment of the aforesaid bill of exchange or cheque or promissory note as the case may be. If such a restrain is put, then from the date the right to sue accrued, the limitation would be three years for filing of the suit. A complete reading of the plaint nowhere indicates that there was any such restrain put by the applicants. Nothing has been stated whether the parties executed a separate agreement with respect to the said loan transaction for which the amount was paid by cheque on 15-5-2009, putting restrain to filing of a suit within three years from the said date of transaction. Merely because a notice was issued and a reply was submitted and payment of Rs.1,50,000/- was admitted by the applicants, again the cause of action for filing of the suit for recovery of the alleged loan amount would start from 15-5- 2009. From the averments made in the plaint, it is clear that the suit ought to have been filed by 14-5-2012. The period of three years limitation had expired on this day. The suit was not filed on the said date. On the other hand, the suit was said to be filed on 23-8-2012 when it was presented in the Court though the plaint was dated 22-6-2012. If these facts are taken together, only on the basis of pleadings in the plaint, it is apparently clear that the suit filed by the non-applicant was barred by limitation. No evidence was required to be recorded as these facts have emerged only from the plaint. Any oral evidence would not have changed the accrual of the cause of action to the non-applicant as in terms of the law made in the Limitation Act, the postponement of the right to sue should be in writing. If this was not, then again it was not necessary to prove anything by adducing evidence.
10. The Apex Court in the case of Sant Lal Mahton v. Kamla Prasad and others, AIR 1951 SC 477 has categorically dealt with an acknowledgment and an admission to that effect made in the written statement. Even if the acknowledgment made in the reply to the notice sent by the applicants is taken into consideration, it will not mean that the same was in fact an acknowledgment of the fact that right to sue on the strength of HIGH COURT OF MADHYA PRADESH, BENCH AT INDORE Civil Revision No.619/2017 (Smt. Pushpa Devi & Anr. Vs. Girdhar Gopal Rathi & Anr.) -7- the cheque given in favour of the applicants, was enlarged by the applicants. If that is not there, the limitation would start only from the date of issuance and encashment of the cheque for the purposes of filing of the suit. In such a situation again the suit was filed beyond the limitation and this aspect is not disputed by the non-applicant even before this Court while making his submission. This being so, for proving such facts which were specifically stated in the plaint no evidence was required. It was to be seen by the Court below that the suit filed by the non-applicant would be barred by limitation and since there is no provision to enlarge limitation for filing of such suit and no such power is vested in the Court, the suit of the non- applicant was liable to be dismissed under the provisions of order 7, rule 11 of civil procedure code. Having failed to appreciate such legal position, the Court below erred in exercising the jurisdiction vested in it in appropriate manner and in rejecting the application of the applicants under order 7, rule 11 of civil procedure code."
In the present case, agreement to sale was executed on 20/09/1994 and the sale deed was executed on 01/12/1997 and the suit has been filed on 28/02/2017 and the period of limitation for such suits is only 03 years and therefore, in the considered opinion of this Court, the trial Court has erred in law and facts in rejecting the application preferred under Order VII Rule 11 of the CPC.
14- The apex Court in the case of Suraj Lamp and Industries Pvt. Ltd. through Director Vs. State of Haryana and Anr. reported in 2009 (4) MPLJ 315 has held that a registered document is a notice to all world and a suit has to be filed within three years from the date of registration. Paragraph No.8 of the aforesaid judgment reads as under:-
HIGH COURT OF MADHYA PRADESH, BENCH AT INDORE Civil Revision No.619/2017 (Smt. Pushpa Devi & Anr. Vs. Girdhar Gopal Rathi & Anr.) -8- "8. The Registration Act, 1908, was enacted with the intention of providing orderliness, discipline and public notice in regard to transactions relating to immovable property and protection from fraud and forgery of documents of transfer. This is achieved by requiring compulsory registration of certain types of documents and providing for consequences of non-
registration. Section 17 of the Registration Act clearly provides that any document (other than testamentary instruments) which purports or operates to create, declare, assign, limit or extinguish whether in present or in future "any right, title or interest" whether vested or contingent of the value of Rs. 100 and upwards to or in immovable property. Section 49 of the said Act provides that no document required by Section 17 to be registered shall, affect any immovable property comprised therein or received as evidence of any transaction affected such property, unless it has been registered. Registration of a document gives notice to the world that such a document has been executed. Registration provides safety and security to transactions relating to immovable property, even if the document is lost or destroyed. It gives publicity and public exposure to documents thereby preventing forgeries and frauds in regard to transactions and execution of documents. Registration provides information to people who may deal with a property, as to the nature and extent of the rights which persons may have, affecting that property. In other words, it enables people to find out whether any particular property with which they are concerned, has been subjected to any legal obligation or liability and who is or are the person/s presently having right, title, and interest in the property. It gives solemnity of form and perpetuate documents which are of legal importance or relevance by recording them, where people may see the record and enquire and ascertain what the particulars are and as far as land is concerned what obligations exist with regard to them. It ensures that every person dealing with immovable property can rely with confidence upon the statements contained in the registers (maintained under the said Act) as a full and complete account of all transactions by which the title to the property may be affected and secure extracts/copies duly certified."
In light of the aforesaid, this Court is of the opinion that present suit was certainly barred by limitation and should have been dismissed at the threshold.
15- This Court in Civil Revision No.275/2011 decided on HIGH COURT OF MADHYA PRADESH, BENCH AT INDORE Civil Revision No.619/2017 (Smt. Pushpa Devi & Anr. Vs. Girdhar Gopal Rathi & Anr.) -9- 08/03/2016 has considered time barred suits in which also sale deed was in existence. Paragraphs No.13, 18 to 22, 24 and 25 reads as under:-
"13- The relevant statutory provisions necessary for adjudicating the civil revision reads as under:-
"Order II Rule 2 of the Code of Civil Procedure, 1908:-
2. Suit to include the whole claim.- (1) Every suit shall include the whole of the claim which the plaintiff is entitled to make in respect of the cause of action; but a plaintiff may relinquish any protection of his claim in order to bring the suit within the jurisdiction of any Court.
(2) Relinquishment of part of claim.- Were a plaintiff omits to sue in respect of, or intentionally relinquishes, any portion of his claim, he shall not afterwards sue in respect of the portion so omitted or relinquished.
(3) Omission to sue for one of several reliefs.- A person entitled to more than one relief in respect of the same cause of action may sue for all or any of such reliefs; but if the omits, except with the leave of the Court, to sue for all such reliefs, he shall not afterwards sue for any relief so omitted.
Explanation.- For the purpose of this rule an obligation and a collateral security for its performance and successive claims arising under the same obligation shall be deemed respectively to constitute but one cause of action."
Order VII Rule 11 of the Code of Civil Procedure, 1908:-
11. Rejection of plaint.- The plaint shall be rejected in the following cases:-
(a) where it does not disclose a cause of action;
(b) where the the relief claimed is undervalued, and the plaintiff, on being required by the Court to correct the valuation within a time to be fixed by the Court, fails to do so;
(c) where the relief claimed is properly valued but the plaint is written upon paper insufficiently stamped, and the plaintiff, on being required by the Court to supply the requisite stamp-paper within a time to be fixed by the Court, fails to do so;
(d) where the suit appears from the statement in the plaint to be barred by any law;
(e) where it is not filed in duplicate;
(f) where the plaintiff fails to comply with the provisions of rule 9;
Provided that the time fixed by the Court for the correction of the valuation or supplying of the requisite stamp-paper shall not be extended unless the Court, for reasons to be recorded, is satisfied that HIGH COURT OF MADHYA PRADESH, BENCH AT INDORE Civil Revision No.619/2017 (Smt. Pushpa Devi & Anr. Vs. Girdhar Gopal Rathi & Anr.)
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the plaintiff was prevented by any cause of an exceptional nature for correcting the valuation or supplying the requisite stamp paper, as the case may be, within the time fixed by the Court and that refusal to extend such time would cause grave injustice to the plaintiff.
Sections 53-A and 54 of the Transfer of Property Act:-
[53-A.- Part performance.--Where any person contracts to transfer for consideration any immoveable property by writing signed by him or on his behalf from which the terms necessary to constitute the transfer can be ascertained with reasonable certainty, and the transferee has, in part performance of the contract, taken possession of the property or any part thereof, or the transferee, being already in possession, continues in possession in part performance of the contract and has done some act in furtherance of the contract, and the transferee has performed or is willing to perform his part of the contract, then, notwithstanding that 2[***] where there is an instrument of transfer, that the transfer has not been completed in the manner prescribed therefor by the law for the time being in force, the transferor or any person claiming under him shall be debarred from enforcing against the transferee and persons claiming under him any right in respect of the property of which the transferee has taken or continued in possession, other than a right expressly provided by the terms of the contract:
Provided that nothing in this section shall affect the rights of a transferee for consideration who has no notice of the contract or of the part performance thereof.]
54.- "Sale" defined.--''Sale" is a transfer of ownership in exchange for a price paid or promised or part-paid and part-promised.
Sale how made.--Such transfer, in the case of tangible immoveable property of the value of one hundred rupees and upwards, or in the case of a reversion or other intangible thing, can be made only by a registered instrument.
In the case of tangible immoveable property of a value less than one hundred rupees, such transfer may be made either by a registered instrument or by delivery of the property.
Delivery of tangible immoveable property takes place when the seller places the buyer, or such person as he directs, in possession of the property.
Contract for sale.--A contract for the sale of immoveable property is a contract that a sale of such property shall take place on terms settled between the parties. It does not, of itself, create any interest in or charge on such property.
Sections 34 and 41 of the Specific Relief Act, 1963:-
34. Discretion of court as to declaration of status or right.--
Any person entitled to any legal character, or to any right as to any property, may institute a suit against any person denying, or interested to deny, his title to such character or right, and the court may in its HIGH COURT OF MADHYA PRADESH, BENCH AT INDORE Civil Revision No.619/2017 (Smt. Pushpa Devi & Anr. Vs. Girdhar Gopal Rathi & Anr.)
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discretion make therein a declaration that he is so entitled, and the plaintiff need not in such suit ask for any further relief:
Provided that no court shall make any such declaration where the plaintiff, being able to seek further relief than a mere declaration of title, omits to do so.
Explanation.-- A trustee of property is a "person interested to deny" a title adverse to the title of some one who is not in existence, and whom, if in existence, he would be a trustee.
41. Injunction when refused.-- An injunction cannot be granted-
(a) to restrain any person from prosecuting a judicial proceeding pending at the institution of the suit in which the injunction is sought, unless such restraint is necessary to prevent a multiplicity of proceedings;
(b) to restrain any person from instituting or prosecuting any proceeding in a court not subordinate to that from which the injunction is sought;
(c) to restrain any person from applying to any legislative body;
(d) to restrain any person from instituting or prosecuting any proceeding in a criminal matter;
(e) to prevent the breach of a contract the performance of which would not be specifically enforced;
(f) to prevent, on the ground of nuisance, an act of which it is not reasonably clear that it will be a nuisance;
(g) to prevent a continuing breach in which the plaintiff has acquiesced;
(h) when equally efficacious relief can certainly be obtained by any other usual mode of proceeding except in case of breach of trust;
(i) when the conduct of the plaintiff or his agents has been such as to disentitle him to the assistance of the court;
(j) when the plaintiff has no personal interest in the matter." 18- It cannot be disputed that the Respondent No.1 has filed a previous suit i.e. C.O.S. No. 5-A/2011 before the XIII Civil Judge Class-I, Indore and during the pendency of the said suit the present suit was filed. It has been argued by learned counsel for the Respondent No.1 that the relief prayed in the present suit is different from the previous suit. The question is, when the suit property and claim of the Respondent No.1 is the same, why was the relief prayed in the present suit not claimed/prayed in the previous suit, while the same could have been and should have been claimed in the previous suit and if the same was not claimed or omitted to be claimed, the subsequent suit would be clearly hit by the provisions of Order II Rule 2 CPC. In view of the aforesaid provision of law, present suit is clearly barred by law and hence, the plaint is liable to be rejected.
19- The provisions of Order VI Rule 4-A of CPC are HIGH COURT OF MADHYA PRADESH, BENCH AT INDORE Civil Revision No.619/2017 (Smt. Pushpa Devi & Anr. Vs. Girdhar Gopal Rathi & Anr.)
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mandatory in nature and it is clear from the bare perusal of the suit, it is clear that there no necessary pleadings which are mandatorily required to be made in the plaint. Thus failure to comply with the aforesaid mandatory provisions of law would lead to rejection of the plaint.
20- The present suit is clearly barred by time as the sale deeds challenged in the suit are of the year 1995 and the suit has been filed in the year 2011 i.e. after more than three years of execution and registration of the sale deeds. The law being that registration of document is notice to whole world as has been held in the case of Suraj Lamp & Industries Pvt. Ltd. Through Director Vs. State of Haryana & Others reported in 2009(4) MPLJ 315 as under :-
"8. The Registration Act, 1908, was enacted with the intention of providing orderliness, discipline and public notice in regard transactions relating to immovable property and protection from fraud and forgery of documents of transfer. This is achieved by requiring compulsory registration of certain types of documents and providing for consequences of non-registration. Section 17 of the Registration Act clearly provides that any document (other than testamentary instruments) which purports or operates to create, declare, assign, limit or extinguish whether in present or in future "any right, title or interest" whether vested or contingent of the value of Rs.100 and upwards to or in immovable property. Section 49 of the said Act provides that no document required by Section 17 to be registered shall, affect any immovable property comprised therein or received as evidence of any transaction affected such property, unless it has been registered. Registration of a document gives notice to the world that such a document has been executed. Registration provides safety and security to transaction relating to immovable property, even if the document is lost or destroyed. It gives publicity and public exposure to documents thereby preventing forgeries and frauds in regard to transactions and execution of documents. Registration provides information to people who may deal with a property, so as to the nature and extent of the rights which persons may have, affecting that property. In other words, it enables people to find out whether any particular property with which they are concerned, has been subjected to any legal obligation or liability and who is or are the person/s presently having right, title, and interest in the property. It gives solemnity of form and perpetuate documents which are of legal importance or relevance by recording them, where people may see the record and enquire and ascertain what the particulars are and as far as land is concerned what obligations exist with regard to them. It ensures that every person dealing with immovable HIGH COURT OF MADHYA PRADESH, BENCH AT INDORE Civil Revision No.619/2017 (Smt. Pushpa Devi & Anr. Vs. Girdhar Gopal Rathi & Anr.)
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property can rely with confidence upon the statements contained in the registers (maintained under the said Act) as a full and complete account of all transactions by which the title of the property may be affected and secure extracts/copies duly certified."
21- It is also clear that the present suit filed in the year 2011 to challenge the sale deeds of the year 1995 i.e. after 16 years is clearly barred by time, while the period of limitation is only 3 years. It is also not in dispute that the petitioners' name in the revenue record were also recorded in the year 1995. Thus, the suit filed by the Respondent No.1 is clearly barred by limitation as has been held by this Court in the case of Nanhi Bai Vs. Govind Rao reported in MPWN 2006 V. 3 NOTE 88 as under:-
"9. Regarding substantial question of law No.(b) :
The gift deed is dated 6.2.1976 and the suit for its cancellation has been filed by the plaintiff on 6.4.1986. Under Article 59 of the Indian Limitation Act, the prescribed period of limitation is three years from the date of execution of instrument first become knowledge to the plaintiff. It is no more in dispute that Ex.D-1 gift deed dated 6.2.1976 is very well in the knowledge of the plaintiff right from the day of its execution and, therefore, the suit for cancellation of document ought to have been brought within three years from this date. Since the suit has been filed on 8.4.1986, therefore, it has become time barred. Substantial question of law No. (b) is thus answered accordingly."
22- The aforesaid facts are undisputed and are clear from the plaint and undisputed documents and the objections raised by the petitioners are purely legal objections, hence no evidence with regard thereto is required and can be decided on the basis of legal position. Thus, the learned trial court has clearly committed jurisdictional error firstly in not considering the aforesaid objection and secondly in holding that evidence is required to be recorded for deciding the aforesaid issues. 24- The manner in which the learned trial court has dealt with the judicial precedent relied upon by the petitioners is also not proper because it has merely been observed that those citations are not applicable in the present circumstances without any discussion. Even all objections, which are purely legal objections, are not considered and decided. This approach of the learned trial court clearly amounts to failure to exercise the jurisdiction vested in it by law.
25- In view of the aforesaid, the suit filed by the Respondent No.1 is clearly barred by law and allowing its continuance would be gross misuse of process of law, hence the plaint deserves to HIGH COURT OF MADHYA PRADESH, BENCH AT INDORE Civil Revision No.619/2017 (Smt. Pushpa Devi & Anr. Vs. Girdhar Gopal Rathi & Anr.)
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be rejected and consequently the suit deserves to be dismissed. Resultantly, the present civil revision stands allowed. The application preferred under Order VII Rule 11 of the Code of Civil Procedure, 1908 stands allowed and the plaint is rejected."
In light of the aforesaid judgment delivered by this Court, as the suit is certainly hopelessly barred by limitation, the trial Court has erred in law in rejecting the application preferred under Order VII Rule 11 of the CPC.
16- In the case of Mehar Chand Das Vs. Lal Babu Siddique & Ors. reported in AIR 2007 SC 1499, the apex Court has held that if relief of possession is not claimed in a suit and there is mere relief of declaration in a suit, the suit is not maintainable. Paragraph No.11 and 12 of the aforesaid judgment reads as under:-
"11. The defendant-appellant, therefore, had been in possession of the suit property. In that view of the matter the plaintiff-respondents could seek for further relief other than for a decree of mere declaration of title.
12. The High Court, in our opinion, committed a manifest error in not relying upon the decision of this Court in Vinay Krishna (supra). The said decision categorically lays down the law that if the plaintiff had been in possession, then a suit for mere declaration would be maintainable; the logical corollary whereof would be that if the plaintiff is not in possession, a suit for mere declaration would not be maintainable."
17- Similar view has been taken by this Court in the case of Gangadhar Vs. Bhanwaribai reported in 2012 (I) MPWN 37, Vinay Krishna Vs. Keshav Chandra and Another reported in AIR 1993 SC 957, Chameli Bai (Smt.) & Six Ors. Vs. Ujagar Singh HIGH COURT OF MADHYA PRADESH, BENCH AT INDORE Civil Revision No.619/2017 (Smt. Pushpa Devi & Anr. Vs. Girdhar Gopal Rathi & Anr.)
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reported in 2008 (IV) MPJR-CG 54 and Munilal Vs. Oriental Fire & General Insurance Co. Ltd. reported in 1996(I) MPWN 101. 18- In light of the aforesaid judgments passed by the apex Court and the coordinate benches of this Court, this Court is of the opinion that the suit was hopelessly barred by limitation. The suit should have been filed within three years from the date of execution of the sale deed.
19- Not only this, the plaintiff does not have any document as reflected from the plaint that at any point of time any agreement was executed in his favour. There is no agreement in his favour, there is no sale deed and he is simply claiming one third share in the property.
20- In the considered opinion of this Court, the trial Court has erred in law and facts in rejecting the application preferred under Order VII Rule 11 of the CPC. Resultantly, revision stands allowed. The application preferred under Order VII Rule 11 of the CPC stands allowed and the suit is dismissed.
Certified copy as per rules.
(S. C. SHARMA) JUDGE Tej Digitally signed by Tej Prakash Vyas Date: 2018.04.26 17:24:05 +05'30'