Gujarat High Court
Jeeviben Wd/O Peerbhai Jamalbhai vs Safal Goyal Realty Llp on 10 July, 2023
Author: Ashutosh Shastri
Bench: Ashutosh Shastri
NEUTRAL CITATION
C/FA/554/2020 ORDER DATED: 10/07/2023
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/FIRST APPEAL NO. 554 of 2020
With
CIVIL APPLICATION (FOR STAY) NO. 1 of 2020
In R/FIRST APPEAL NO. 554 of 2020
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JEEVIBEN WD/O PEERBHAI JAMALBHAI
Versus
SAFAL GOYAL REALTY LLP
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Appearance:
MR. RAJ A TRIVEDI(7024) for the Appellant(s) No. 1
VIRAL K SHAH(5210) for the Appellant(s) No. 1
for the Defendant(s) No. 2,2.1,2.2,2.3,3,3.2,4,5,6
DHARA P BHATT(7530) for the Defendant(s) No. 1
MR MAULIK R SHAH(6385) for the Defendant(s) No. 3.1,3.3,3.4
MR. KAMAL TRIVEDI, LD. ADVOCATE GENERAL WITH MR. PARTH H
BHATT WITH MR. VINAY B. VISHEN (6381) for the Defendant(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE ASHUTOSH SHASTRI
and
HONOURABLE MR. JUSTICE DIVYESH A. JOSHI
Date : 10/07/2023
ORAL ORDER
(PER : HONOURABLE MR. JUSTICE ASHUTOSH SHASTRI)
1. By way of present appeal under Section 96 of the Civil Procedure Code, 1908 (for short "C.P.C), the appellant-original plaintiff has challenged the judgment and decree dated 23.12.2019 passed by the learned Additional Senior Civil Judge, Sanand in Special Civil Suit No.13 of 2018 (Old Special Civil Suit No.473 of 2016) by virtue of which the suit came to be rejected in exercise of jurisdiction under Order 7 Rule 11(d) of the C.P.C.
2. The appellant-original plaintiff has brought the suit being Page 1 of 30 Downloaded on : Sat Sep 16 21:05:18 IST 2023 NEUTRAL CITATION C/FA/554/2020 ORDER DATED: 10/07/2023 undefined Special Civil Suit No.473 of 2016 as indicated above for the purpose of seeking declaration and permanent injunction as also for quashing and setting aside the documents which are stated in the plaint. The case of the appellant-plaintiff was that an entry in respect of the suit land bearing Old Survey No.197/2, Block No.240 came to be mutated in the revenue record on 11.04.1977 vide Entry No.715 whereby his name has been mutated at Serial No.225 for the period between 1977-78 and 1978-79. However, by declaring the appellant as dead person, the deceased son of the appellant, namely, Hussen, at the relevant point of time, declared before the Gram Panchayat that plaintiff is missing since more than five years and by declaring the plaintiff as dead person, the entry was mutated being Entry No.774 on 13.06.1979 by deleting the name of the appellant and thereby incorporated the names of legal heirs. Later on, a sale document came to be executed in favour of defendant No.3, i.e., Govind Bricks Manufacturing Company on 26.12.1983 and the same got registered before the Office of the Sub-Registrar, Sanand vide Entry No.1818 and simultaneously the said transaction has been mutated in the revenue record on 23.01.1984 in village Form No.6. According to the plaintiff, thereafter, a partition took place and the said Block No.240 came in the share of Kamuben Ganeshbhai Prajapati, Kachrabhai Ishwarlal Prajaparti, Mahendrabhai Danabhai Prajapati and Sureshbhai Danabhai Prajapati and an entry in this regard being Entry No.1249 has also been mutated in the village Form No.6 on 20.09.1985. Subsequently, one of the co-owners, namely, Kamuben Ganeshbhai relinquished her right in favour of other three co- owners and an entry thereof has been mutated in the revenue Page 2 of 30 Downloaded on : Sat Sep 16 21:05:18 IST 2023 NEUTRAL CITATION C/FA/554/2020 ORDER DATED: 10/07/2023 undefined record vide Entry No.1372 on 25.05.1986. Thereafter, on 23.07.1986, the registered transaction came to be executed which got mutated in the revenue record vide Entry No.1376 on 16.08.1986. Out of the three co-owners, one Ranchhodbhai Shivrambhai Prajapati expired on 20.01.2001, as a result of which, the legal heirs of deceased Ranchhodbhai Shivrambhai Prajapati were brought on record by virtue of Entry No.2382 dated 19.03.2001 in village Form No.6. It has been stated in the plaint that out of six legal heirs of deceased Ranchhodbhai as stated in the plaint, the legal heirs at Serial Nos.3 to 6. namely, Hemaben Ranchhodbhai, Jayaben Ranchhodbhai, Varshaben Ranchhodbhai and Poojaben Ranchhodbhai have relinquished their rights in favour of the legal heirs at Serial Nos.1 and 2 as indicated at internal page No.6 of the plaint, and to that effect, an entry was mutated on 19.03.2001 being Entry No.2387. It has been further stated in the plaint that the co-owners then executed a registered sale transaction in favour of defendant No.4 on 23.07.2003 bearing Registration No.1167 and the effect of the said transaction was given in the revenue record in village Form No.6 vide Entry No.2462 on 25.07.2023. It is further the assertion of the plaintiff that, thereafter, with respect to this Block No.240, the then Mamlatdar passed an order on 08.10.2003 amalgamating Block No.240 and Block No.215 and an entry in this regard has been mutated in the village Form No.6 on 13.11.2003 vide Entry No.2488. Later on Block No.215, in which, Block No.237 was merged, the District Development Officer, Ahmedabad passed an order on 01.11.2004 granting non-agricultural permission and the effect of the same was also given in the revenue record on 04.12.2004. It is further the assertion of the Page 3 of 30 Downloaded on : Sat Sep 16 21:05:18 IST 2023 NEUTRAL CITATION C/FA/554/2020 ORDER DATED: 10/07/2023 undefined appellant that the defendant No.4 who purchased the property through registered sale transaction as indicated above, has sold the said property to the defendant No.1 and the said registered transaction has taken place on 06.06.2014 bearing Registration No.3762 and the effect of the same was also incorporated in the revenue record on 09.06.2014, and pursuant to this transaction, the defendant No.1 became the owner and occupier of the land in question. It is with this background by making assertion about the misrepresentation which has been projected in respect of the appellant, a suit is brought before the court for relinquishment which are set out in paragraph-20 stated to have been filed on 29.09.2016.
3. Upon receipt of the summons, it appears that the defendant No.3 filed an application below Exh.24 under Order 7 Rule 11(d) and questioned the tenability of the suit itself at the threshold and this application has been heard by the learned Additional Senior Civil Judge, Sanand and the said application was allowed by virtue of an order dated 23.12.2019, and it is this order passed by the learned Senior Civil Judge is made the subject matter of present appeal under Section 96 before us.
4. Learned advocate Mr. Viral K. Shah appearing on behalf of the appellant has submitted that an error is committed by the learned Senior Civil Judge while allowing the application. In fact, according to him, the averments contained in the plaint to be read as a whole and the averments from few paragraphs cannot be picked up, and according to Mr. Shah, the totality of averments which are mentioned in the plaint, the order passed Page 4 of 30 Downloaded on : Sat Sep 16 21:05:18 IST 2023 NEUTRAL CITATION C/FA/554/2020 ORDER DATED: 10/07/2023 undefined by the learned Senior Civil Judge is not sustainable in the eye of law. According to Mr. Shah, it has been further submitted that objection with regard to this transaction was very much mentioned even before the revenue proceedings in the year 2010 itself and, therefore, if the sequence of events to be seen, the order passed by the learned Senior Civil Judge is not sustainable. It is the case of the appellant through learned advocate Mr. Shah that for the first time when the order came to be passed by the Secretary, Appeals, it was conveyed that the dispute since pertaining to the ownership cannot be in the realm of revenue authority and at that stage, it was realized by the appellant that civil suit would be a proper remedy, and as such, this aspect having not been considered in true letter and spirit, the order passed by the learned civil judge is erroneous. In fact, according to Mr. Shah, the grievance about the transaction has been precipitated and continued the same and it is only when revenue authorities have indicated that this cannot form a subject matter of revenue proceedings, the appellant has preferred the present civil suit, and as such, cannot be said to be barred by either delay or laches, and as such, the reasons which are assigned by the learned Civil Judge are not in consonance with the proposition of law. No further submissions have been made.
5. As against this, Mr. Kamal Trivedi, the learned Advocate General appearing on behalf of the opponent No.1 has tendered before us the chronology of significant dates and thereby has submitted that from this sequence of dates, it cannot be said in any manner that the plaintiff was unaware about the transaction in question. According to the learned Page 5 of 30 Downloaded on : Sat Sep 16 21:05:18 IST 2023 NEUTRAL CITATION C/FA/554/2020 ORDER DATED: 10/07/2023 undefined Advocate General, the chronology which are stated right from Clause 1 to 12 are the developments which are prior to even 2010 which cannot be unnoticed by the appellant, and as such, when the suit has been brought before the court at a much belated stage, it cannot be said that any error is committed by the court below. The learned Advocate General has further pointed out in detail the sequence of events which has taken place and has clearly suggested that the transactions which have taken place are the registered transactions and there appears to be a deemed knowledge to the appellant, and as such, when the suit has been brought at a much belated stage, there is no error committed by the court below. For the purpose of such submission, the learned Advocate General has drawn the attention of this court to the sequence of events which is tendered before us, copy whereof has already been supplied to the other side, and as such, by referring to this sequence of events, learned Advocate General has submitted that there appears to be no error committed by the court below, and as such, the appeal being merit less, is required to be dismissed.
6. To substantiate his submission, the learned Advocate General has further pointed out few decisions which are reproduced hereunder;
"1) In the case of Emrald Co-operative Housing Society Ltd. vs. Decd. Gulamkadar S/o. Gulam Husain Abdulkadar and Bai Shakarbu & Ors., reported in 2019(2) GLH 559;
2) Decision rendered by this Court in the case of Page 6 of 30 Downloaded on : Sat Sep 16 21:05:18 IST 2023 NEUTRAL CITATION C/FA/554/2020 ORDER DATED: 10/07/2023 undefined Shreeji Developers Through Partners vs. Kailashben D/o. Manibhai Shankarbhai & W/o.
Ashokbhai Bhulabhai Patel, Revision Application No.195 of 2002 decided on 14.09.2022;
3) Decision rendered by this Court in the case of Kokilaben D/o. Shankarbhai Hargovindbhai & W/o. Baldevlal Mohanlal Patel vs. Gangaram Shankarbhai, First Appeal No.1547 of 2020, decided on 11.10.2021;
4) In the case of Shantilal Shankarbhai Patel
Since Deceased vs. Patel Dalsukhbhai
Nanabhai (deceased), reported in 2023 (2) GLH 740;
5) In the case of C.S. Ramaswamy vs. V.K. Senthil & Ors., reported in 2022 SCC Online SC 1330;
6) In the case of Dahiben vs. Arvindbhai Kalyanji Bhanusali (Gajra), reported in (2020) 7 SCC 366;
7. At this stage, the learned Advocate General has also pointed out that the original defendant No.6 who never appeared in the suit proceedings nor has filed Vakalatnama and has throughout remained unrepresented, it is for the fist time when the appeal is filed it was brought to the notice that the defendant No.6 has passed away, and as such, has an apprehension that after the disposal of the present appeal, it Page 7 of 30 Downloaded on : Sat Sep 16 21:05:18 IST 2023 NEUTRAL CITATION C/FA/554/2020 ORDER DATED: 10/07/2023 undefined may not happen that the legal heirs of deceased defendant No.6 may come out to raise any grievance, and as such, has requested that in view of Order 22 Rule 5 as well as Sub-rule 4 of Rule 4, some observations be made to protect such apprehension, and as such, while disposing of the appeal, the said aspect may be taken care of. After referring to the aforesaid circumstances, the learned Advocate General has submitted that appeal being merit less, same be dismissed and the order which has been passed by the learned trial judge is a well reasoned order taking note of specific point that even from the last date of registration, there is a delay of six years and from the original transaction, there is a delay of 36 years, and that being a situation, keeping in view the well founded proposition of law, the appeal may be dismissed. No other submissions have been made.
8. Having heard the learned counsel appearing for the parties and having gone through the materials on record, few circumstances which are prevailing on record are not possible to be ignored.
9. Before dealing with the issue in respect of exercise of power under Order-VII Rule 11(d) of Code of Civil Procedure, first of all while examining the order, few facts are required to be briefly analyzed.
10. It is stated before us that prior to 1977, upon death of original owner Peerbhai Jamalbhai, land in question namely Survey No.197/ Paiki came in the share of Jeeviben, Wd/o. Peerbhai Jamalbhai and three minor sons, namely Hussainbhai Page 8 of 30 Downloaded on : Sat Sep 16 21:05:18 IST 2023 NEUTRAL CITATION C/FA/554/2020 ORDER DATED: 10/07/2023 undefined Peerbhai, Kamalbhai Peerbhai and Mehboobbhai Peerbhai. On account of amalgamation Scheme under provisions of Prevention of Fragmentation and Consolidation of Holdings Act, land bearing Survey No.197/2, totaling around 13355 Sq. Mtrs. (including land bearing Survey No.197 Paiki) was assigned Block No.240 situated at village Shela, Taluka Sanand, District and Sub-District Ahmedabad and to that effect, revenue entry was also effected on 11.4.1977 being entry No.715. On account of the fact that Jeeviben Peerbhai was not located and not traceable for about 5 years, after taking statement/ reply from heirs of Jeeviben and after due verification from panch, name of Jeeviben Peerbhai was deleted from the revenue record on 13.6.1979 and other legal heirs being Hussainbhai Peerbhai, Kamalbhai Peerbhai and Mehboodbhai Peerbhai continued in the revenue record and revenue entry was also effected on 13.6.1979 bearing entry No.774.
11. It appears and as stated before us which is not countered by the contesting parties to the proceedings that on 26.12.1983, Hussainbhai Peerbhai, i.e. defendant No.2 conveyed the suit land to one Ranchhodbhai Shivram Prajapati, partner of Govind Bricks Manufacturing Company, i.e. defendant No.3 and to that effect, registered sale transaction was executed on 26.12.1983 and registered before Sub Registrar, Sanand at serial No.1818. Said registered transaction has also been given effect to in the revenue record vide entry No.1108 on 23.1.1984. Later on, it is stated that on 20.9.1985, partition took place amongst the partners of defendant No.3 firm and said land was divided amongst Page 9 of 30 Downloaded on : Sat Sep 16 21:05:18 IST 2023 NEUTRAL CITATION C/FA/554/2020 ORDER DATED: 10/07/2023 undefined Kamuben Govindbhai Prajapati, Kachrabhai Ishwarlal Prajapati, Mahendrabhai Kanabhai Prajapti and Sureshbhai Kanabhai Prajapati and entry to that effect was also effected to in the revenue record being entry No.1249 on 20.9.1985. Later on 23.7.1986, Kamuben Govindbai Prajapati, one of co-owners of suit land relinquished her right in favour of other co-owners by executing a release deed which was also given effect to in the revenue record on 15.8.1986 being entry No.1372.
12. Stand of the opponent was to the effect that owners of the suit land i.e. Kachrabhai Ishwarbhai, Mahendrabhai Kanabhai, Sureshbhai Kanabhai and owners of land bearing Block No.230 on 23.7.1986 exchanged their respective lands with each other by exchange deed registered before Sub- Registrar, Sanand at serial No.4248 and owners of said Block No.230 were Ranchhodbhai Shivram Prajapati, Govindbhai Shivram Prajapati and Shivrambhai Nagardas Prajapati. This transaction of exchange deed was also mutated in the revenue record on 16.8.1986 being entry No.1376. Later on, it was pointed out that on 20.1.2001, co-owner Ranchhodbhai Shivrambhai Prajapati died intestate. As a result of this, names of legal heirs were brought on record of revenue and names were (1) Amrutben, Wd/o. Ranchhodbhai Shivrambhai, (2) Bhikhabhai Ranchhodbhai, (3) Hemabhai Ranchhodbhai, (4) Jayaben Ranchhodbhai, (5) Varshaben Ranchhodbhai and (6) Poojaben Ranchhodbhai and entry was given effect to vide entry No.2382 on 19.3.2001. Later on, 19.3.2001, simultaneously, Hemaben Ranchhodbhai, Jayaben Ranchhodbhai, Varshaben Ranchhodbhai and Poojaben Page 10 of 30 Downloaded on : Sat Sep 16 21:05:18 IST 2023 NEUTRAL CITATION C/FA/554/2020 ORDER DATED: 10/07/2023 undefined Ranchoodbhai released their rights from the suit land in favour of Amrutben, Wd/o. Ranchhodbhai Shivrambhbhai and Bhikhabhai Ranchhodbbhai and said relinquishment has been given effect to in revenue record on 19.3.2001 being entry No.2387 and it is thereafter, on 23.7.2003, Govindhai Shivrambhai Prajapati, Shivrambhai Nagardas Prajapati, Amrutben Ranchhodbhai Prajapati and Bhikhabhai Ranchhodbhai Prajapati (defendant No.3) executed a registered sale deed in favour of Sahara India Commercial Corporation Ltd., i.e. defendant No.4 and by virtue of this registered transaction, suit land bearing Block No.240 admeausring 13355 Sq. Mtrs. conveyed in favour of defendant No.4 and this registered transaction has also been given effect to in revenue record vide entry No.2462 on 25.7.2003. It is also stated that on 8.10.2003, land bearing Block No.240, Sahara India Commercial Corporation Ltd. purchased the other parcel of lands bearing Block Nos.215, 235 Paiki, 236, 237, 239, 241 to 246, 249, 250, 294/A, 294/B as well as 295 to 298 and 300 to 304 and 299 as well and made an application to Mamlatdar for amalgamation of all the blocks and by virtue of amalgamation order dated 8.10.2003, all the lands having aforementioned block numbers were amalgamated and new block number was given as 215 and this has also been mutated in the revenue record vide entry No.2488 on 13.11.2003 and new amalgamated Block No.215 thereafter admeasured as 3,90,927 Sq. Mtrs.
13. It further appears that on 1/10.11.2004, District Development Officer, District Panchayat, Ahmedabad passed Page 11 of 30 Downloaded on : Sat Sep 16 21:05:18 IST 2023 NEUTRAL CITATION C/FA/554/2020 ORDER DATED: 10/07/2023 undefined an order and Non-agricultural permission came to be granted not only to amalgamated Block No.215 but also to other parcel of lands and mutation entry was also given effect to on 4.12.2004 being entry No.2535.
14. All this development has taken place prior to 2010 and transactions have taken place upon proper registration as per the say of the contesting opponent and it is only for the first time in 2010, appellant stated to have received knowledge about deletion of her name from the revenue record and as such, for the first time, an appeal was also filed before the Deputy Collector. On 5.8.2010, Deputy Collector passed an order and dismissed the aforesaid appeal preferred by the appellant with respect to entry No.774 dated 13.6.1979 substantially on the ground of delay. As a result of this, present appellant preferred revision application before the District Collector, Ahmedabad being Revision Application No.299 of 2010. Vide order dated 30.12.2011, District Collector, Ahmedabad passed an order partly allowing the revision application by condoning the delay and remanding the matter back for fresh consideration and later on, remand case was registered as Remand Case No.63 of 2012. Learned Deputy Collector on 30.4.2012 was pleased to dismiss the Remand Case No.63 of 2012 of the present appellant. As a result of this, Revision Application No.11 of 2014 was also filed challenging the order of the Deputy Collector.
15. Facts which are stated emerge that third registered transaction has taken place on 6.6.2014 by defendant No.4 and certain parcel of lands, as indicated above, were conveyed Page 12 of 30 Downloaded on : Sat Sep 16 21:05:18 IST 2023 NEUTRAL CITATION C/FA/554/2020 ORDER DATED: 10/07/2023 undefined to defendant No.1 by registered sale deed registered before the Sub-Registrar, Sanand at serial No.3672 dated 6.6.2014 and revenue entry is effected on 10.6.2014. This transaction is a also registered transaction with respect to the suit land as well. Subsequently, District Collector, Ahmedabad passed an order on 30.7.2015 quashing the earlier order of the Deputy Collector dated 30.4.2012 whereby entry No.774 dated 13.6.1979 came to be cancelled and it is in this background, it appears that for the first time, on 26.9.2016, Special Civil Suit No.473 of 2016 which was later on renumbered as Special Civil Suit No.13 of 2018 came to be filed by the appellant before learned Principal Civil Judge, Ahmedabad (Rural) for the relief of declaration and simultaneously cancellation of the sale deeds as set out in the prayer clause of the plaint.
16. It appears that land in question has almost three successive registered sale transactions and in view of the law laid down in series of decisions, registration is the deemed knowledge, still suit came to be filed in the year 2016.
17. In the background of the aforesaid facts, when summons was issued, it appears that an application was filed under Order-VII Rule 11 of Code of Civil Procedure on 4.7.2017 inter alia contending that suit proceedings are barred by law of limitation since three successive registered sale transactions right from the year 1983 have taken place and though revenue entries were made subject matter of proceedings, suit came to be filed only in the year 2016 and that being so, said application under Order-VII Rule 11(d) was submitted. Said Page 13 of 30 Downloaded on : Sat Sep 16 21:05:18 IST 2023 NEUTRAL CITATION C/FA/554/2020 ORDER DATED: 10/07/2023 undefined application came up for consideration before learned Additional Senior Civil Judge, Sanand who by his order dated 23.12.2019 was pleased to allow the application. As a result of this, plaint came to be rejected of Special Civil Suit No.13 of 2018 (old Special Civil Suit No.473 of 2016) and it is this order of rejection of plaint is made subject matter of present First Appeal before us under Section 96 of Code of Civil Procedure.
18. Learned advocate Mr. Viral K. Shah appearing on behalf of appellant original plaintiff has submitted that learned Judge ought to have read the plaint as a whole and averments contained in the plaint if to be taken note of in its totality, it would clearly suggest that this is not a case for exercise of jurisdiction under Order-VII Rule 11(d) of Code of Civil Procedure. It has further been contended that it is not that after unreasonable period of time, appellant has raised challenge with regard to transactions which have taken place, on the contrary, right from 2010, revenue proceedings were initiated by the appellant and it is only when it was realized at later point of time upon advice that suit to be filed for the relief which is sought for before the competent forum. As a result of this, plaint was submitted and as such having not considered this aspect, order passed by learned Civil Judge is required to be corrected. It has been further submitted that suit cannot be said to be either belated or beyond period of limitation in view of the fact that when proceedings before Special Secretary, Revenue Department got over and it was conveyed that controversy involved is amenable to initiation of civil proceedings rather revenue proceedings and as such when Page 14 of 30 Downloaded on : Sat Sep 16 21:05:18 IST 2023 NEUTRAL CITATION C/FA/554/2020 ORDER DATED: 10/07/2023 undefined controversy involved and grievance raised by appellant is falling within the realm of the Civil Court's jurisdiction, suit was brought which cannot be said to be either belated or cannot be said to be beyond period of limitation.
19. Learned advocate Mr. Shah has fairly submitted that if suit is said to be beyond period of limitation, there is nothing for the appellant to agitate in the present proceedings since substantial question is whether plaint can be rejected on the ground of limitation or not, and hence after this submission, has left it to the discretion of the Court.
20. As against this, learned Advocate General Mr. Kamal B. Trivedi appearing on behalf of contesting respondents assisted by learned advocate Mr. Parth Bhatt and learned advocate Mr. Vinay B. Vishen has contended that suit is hopelessly time barred and is a calculated move of the appellant to somehow excavate something out of these transactions, otherwise it is a settled principle of law that registered transaction is otherwise a deemed knowledge to the litigant and here is a case in which during passage of time, there are three successive registered sale transactions in respect of suit land and as such it is not possible for the appellant to contend that appellant was caught by process. In fact, right from 2010 itself, appellant was conscious about the fact with regard to affairs of the land in question and conveniently, she waited upto the year 2016 and tried to ventilate a grievance which is not otherwise permissible in view of the settled position of law.
21. It has further been submitted that even development Page 15 of 30 Downloaded on : Sat Sep 16 21:05:18 IST 2023 NEUTRAL CITATION C/FA/554/2020 ORDER DATED: 10/07/2023 undefined which has taken place, as pointed out prior to 2004, itself is suggesting that there was a registered sale transaction and amalgamation has taken place and every step is mutated in the revenue record. At this stage, after losing everything from the proceedings before the revenue jurisdiction, an attempt is made by invoking jurisdiction of Civil Court which has rightly been curved by passing a reasoned order under Order-VII Rule 11(d), which is not permissible to be agitated as if it is a perverse order. There is neither any illegality nor any irregularity nor any perversity found in the reasons assigned in the order passed by the Court below, as such possible view which has been taken by learned Judge does not deserve to be disturbed in any manner and this contention which has been raised appears to be well-founded in view of the fact that while exercising jurisdiction, not only proper reasons are assigned but law on the issue of limitation as well as on the issue of exercise of jurisdiction under Order-VII Rule 11(d) is completely kept in mind. So far as alleged fraud being practiced is concerned, there are no pleadings nor any contention is raised and only at the stage of argument without any base it is tried to be agitated to divulge the attention from the core issue involved in the plaint.
22. At this stage, we may refer to salutary principles which are projected before us and upon such analysis, we deem it proper not to entertain the First Appeal. Since we have considered the same, we deem it proper to reproduce relevant extract from such decisions:
(1) Hon'ble Apex Court in the case of Dahiben v. Arvindbhai Page 16 of 30 Downloaded on : Sat Sep 16 21:05:18 IST 2023 NEUTRAL CITATION C/FA/554/2020 ORDER DATED: 10/07/2023 undefined Kalyanji Bhanusali (Gajra) reported in (2020) 7 SCC 366 has held and observed in paragraphs 29.18 to 29.20 as under:
29.18 The delay of over 5 and ½ years after the alleged cause of action arose in 2009, shows that the suit was clearly barred by limitation as per Article 59 of the Limitation Act, 1963. The suit was instituted on 15.12.2014, even though the alleged cause of action arose in 2009, when the last cheque was delivered to the Plaintiffs. The Plaintiffs have failed to discharge the onus of proof that the suit was filed within the period of limitation. The plaint is therefore, liable to be rejected under Order VII Rule 11 (d) of CPC.
29.19.Reliance is placed on the recent judgment of this Court rendered in Raghwendra Sharan Singh v.
Ram Prasanna Singh (Dead) by LRs.15 wherein this Court held the suit would be barred by limitation under Article 59 of the Limitation Act, if it was filed beyond three years of the execution of the registered deed.
29.20. The Plaintiffs have also prayed for cancellation of the subsequent Sale Deed dated 01.04.2013 executed by Respondent No.1 in favour of Respondent Nos. 2 and 3; since the suit in respect of the 1st Sale Deed dated 02.07.2009 is rejected both under clauses (a) and (d) of Order VII Rule 11, the prayer with respect to the 2nd Sale Deed dated 01.04.2003 cannot be entertained."
(2) Hon'ble Apex Court in the case of C.S. Ramaswamy v. V. K. Senthil and others reported in 2020 SCC OnLine SC 1330 has held and observed in paragraph 31 as under:
31. Even the averments and allegations in the plaint with respect to fraud are not supported by any Page 17 of 30 Downloaded on : Sat Sep 16 21:05:18 IST 2023 NEUTRAL CITATION C/FA/554/2020 ORDER DATED: 10/07/2023 undefined further averments and allegations how the fraud has been committed/played. Mere stating in the plaint that a fraud has been played is not enough and the allegations of fraud must be specifically averred in the plaint, otherwise merely by using the word "fraud", the plaintiffs would try to get the suits within the limitation, which otherwise may be barred by limitation. Therefore, even if the submission on behalf of the respondents - original plaintiffs that only the averments and allegations in the plaints are required to be considered at the time of deciding the application under Order VII Rule 11 CPC is accepted, in that case also by such vague allegations with respect to the date of knowledge, the plaintiffs cannot be permitted to challenge the documents after a period of 10 years. By such a clever drafting and using the word "fraud", the plaintiffs have tried to bring the suits within the period of limitation invoking Section 17 of the limitation Act. The plaintiffs cannot be permitted to bring the suits within the period of limitation by clever drafting, which otherwise is barred by limitation. At this stage, a recent decision of this Court in the case of Raghwendra Sharan Singh (supra) is required to be referred to. In the said decision, this Court had occasion to consider all earlier decisions on exercise of powers under Order VII Rule 11 CPC, which are considered by this Court in paragraphs 6.4 to 6.9 as under:-
"6.4. In T. Arivandandam [T. Arivandandam v. T.V. Satyapal, (1977) 4 SCC 467], while considering the very same provision i.e. Order 7 Rule 11 CPC and the decree of the trial court in considering such application, this Court in para 5 has observed and held as under: (SCC p. 470) "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, Page 18 of 30 Downloaded on : Sat Sep 16 21:05:18 IST 2023 NEUTRAL CITATION C/FA/554/2020 ORDER DATED: 10/07/2023 undefined 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, he should exercise his power under Order 7 Rule 11 CPC 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 10 CPC. An activist Judge is the answer to irresponsible law suits."
6.5. In Church of Christ Charitable Trust & Educational Charitable Society [Church of Christ Charitable Trust & Educational Charitable Society v. Ponniamman Educational Trust, (2012) 8 SCC 706], this Court in para 13 has observed and held as under: (SCC p. 715) "13. While scrutinising the plaint averments, it is the bounden duty of the trial court to ascertain the materials for cause of action. The cause of action is a bundle of facts which taken with the law applicable to them gives the plaintiff the right to relief against the defendant. Every fact which is necessary for the plaintiff to prove to enable him to get a decree should be set out in clear terms. It is worthwhile to find out the meaning of the words "cause of action". A cause of action must include some act done by the defendant since in the absence of such an act no cause of action can possibly accrue."
6.6. In ABC Laminart (P) Ltd. v. A.P. Agencies [(1989) 2 SCC 163], this Court explained the meaning of "cause of action" as follows: (SCC p. 170, para 12) "12. A cause of action means every fact, which if Page 19 of 30 Downloaded on : Sat Sep 16 21:05:18 IST 2023 NEUTRAL CITATION C/FA/554/2020 ORDER DATED: 10/07/2023 undefined traversed, it would be necessary for the plaintiff to prove in order to support his right to a judgment of the court. In other words, it is a bundle of facts which taken with the law applicable to them gives the plaintiff a right to relief against the defendant. It must include some act done by the defendant since in the absence of such an act no cause of action can possibly accrue. It is not limited to the actual infringement of the right sued on but includes all the material facts on which it is founded. It does not comprise evidence necessary to prove such facts, but every fact necessary for the plaintiff to prove to enable him to obtain a decree. Everything which if not proved would give the defendant a right to immediate judgment must be part of the cause of action. But it has no relation whatever to the defence which may be set up by the defendant nor does it depend upon the character of the relief prayed for by the plaintiff."
6.7. In Sopan Sukhdeo Sable [Sopan Sukhdeo Sable v. Charity Commr., (2004) 3 SCC 137] in paras 11 and 12, this Court has observed as under: (SCC p. 146) "11. In ITC Ltd. v. Debts Recovery Appellate Tribunal [ITC Ltd. v. Debts Recovery Appellate Tribunal, (1998) 2 SCC 70] it was held that the basic question to be decided while dealing with an application filed under Order 7 Rule 11 of the Code is whether a real cause of action has been set out in the plaint or something purely illusory has been stated with a view to get out of Order 7 Rule 11 of the Code.
12. The trial court must remember that if on a meaningful and not formal reading of the plaint it is manifestly vexatious and meritless in the sense of not disclosing a clear right to sue, it should exercise the power under Order 7 Rule 11 of the Code taking care to see that the ground mentioned therein is fulfilled. If clever drafting Page 20 of 30 Downloaded on : Sat Sep 16 21:05:18 IST 2023 NEUTRAL CITATION C/FA/554/2020 ORDER DATED: 10/07/2023 undefined has created the illusion of a cause of action, it has to be nipped in the bud at the first hearing by examining the party searchingly under Order 10 of the Code. (See T. Arivandandam v. T.V. Satyapal [(1977) 4 SCC 467].)"
6.8. In Madanuri Sri Rama Chandra Murthy [Madanuri Sri Rama Chandra Murthy v. Syed Jalal, (2017) 13 SCC 174], this Court has observed and held as under: (SCC pp. 178- 79, para 7) "7. The plaint can be rejected under Order 7 Rule 11 if conditions enumerated in the said provision are fulfilled. It is needless to observe that the power under Order 7 Rule 11 CPC can be exercised by the court at any stage of the suit.
The relevant facts which need to be looked into for deciding the application are the averments of the plaint only. If on an entire and meaningful reading of the plaint, it is found that the suit is manifestly vexatious and meritless in the sense of not disclosing any right to sue, the court should exercise power under Order 7 Rule 11 CPC. Since the power conferred on the court to terminate civil action at the threshold is drastic, the conditions enumerated under Order 7 Rule 11 CPC to the exercise of power of rejection of plaint have to be strictly adhered to. The averments of the plaint have to be read as a whole to find out whether the averments disclose a cause of action or whether the suit is barred by any law. It is needless to observe that the question as to whether the suit is barred by any law, would always depend upon the facts and circumstances of each case. The averments in the written statement as well as the contentions of the defendant are wholly immaterial while considering the prayer of the defendant for rejection of the plaint. Even when the allegations made in the plaint are taken to be correct as a whole on their face value, if they show that the suit is barred by any law, or do not disclose cause of action, the application for rejection of plaint Page 21 of 30 Downloaded on : Sat Sep 16 21:05:18 IST 2023 NEUTRAL CITATION C/FA/554/2020 ORDER DATED: 10/07/2023 undefined can be entertained and the power under Order 7 Rule 11 CPC can be exercised. If clever drafting of the plaint has created the illusion of a cause of action, the court will nip it in the bud at the earliest so that bogus litigation will end at the earlier stage."
6.9. In Ram Singh [Ram Singh v. Gram Panchayat Mehal Kalan, (1986) 4 SCC 364], this Court has observed and held that when the suit is barred by any law, the plaintiff cannot be allowed to circumvent that provision by means of clever drafting so as to avoid mention of those circumstances, by which the suit is barred by law of limitation."
(3) Division Bench of this Court in the case of Shantilal Shakarbhai Patel v. Patel Dalsukhbhai reported in 2023 (2) GLH 740 has held and observed in paragraphs 9 and 10 as under:
9. The Apex Court, after survey of various judgments on the analogous issue, has held that the use of the word "first" between the words "suit" and "accrue" would mean that if a suit is based on multiple causes of action, the period of limitation would begun to run from the date when the rights to sue first accrues. It is further held that the right to sue accrues only when the cause of action arises and the suit must be instituted when the right asserted in the suit is infringed or when there is a clear and unequivocal threat to infringe such right by the defendant, against whom the suit is instituted. It is held that the courts must be vigilant about the clever drafting of the plaint, and it is held that, if by such clever drafting of the plaint, it has created the illusion of a cause of action, it should be nipped in the bud, so that bogus litigation will end at the earliest stage. The Apex Court has also noticed the cause of action mentioned in the plaint in the aformentioned case, and has held that the "The plea taken in the plaint that they learned of the alleged fraud in Page 22 of 30 Downloaded on : Sat Sep 16 21:05:18 IST 2023 NEUTRAL CITATION C/FA/554/2020 ORDER DATED: 10/07/2023 undefined 2014, on receipt of the index of the sale deed, is wholly misconceived, since the receipt of the index would not constitute the cause of action for filing the suit." In the present case, the plaintiffs, in order to frustrate the limitation period have taken shelter under the pretext of obtaining an information from the Collectors office on 3.1.2012 suggesting that the N.A permission was granted to the Respondent no.3. Thus, the cause of action, as mentioned in the plaint, is an illusory and appears to have been a wellplanned action in order to bring the suit challenging the registered sale deeds dated 19.10.2002 and 08.02.2006 by alleging bald allegations of fraud and cheating.
The suit will still be barred by limitation since the plaintiffs are blissfully silent on any cause of action after 03.1.2012 since the suit has been filed on 13.04.2012.
10. As held by the Supreme Court in case of Dilboo (Smt.) (dead) by Lrs (supra), whenever a document is registered, the date of registration becomes the date of deemed knowledge. In other cases, where a fact could be discovered by due diligence, then deemed knowledge would be attributed to the plaintiff, because a party cannot be allowed to extend period of limitation by merely claiming that he had no knowledge. It is held that in other cases where a fact could be discovered by due diligence then deemed knowledge would be attributed to the plaintiff because a party cannot be allowed to extend period of limitation by merely claiming that he had no knowledge. The plaintiffs in the plaint, is seeking setting aside of the registered sale deeds . Thus, by a clever drafting and in order to see that the limitation period gets frustrated, the suit has been instituted on a sole reason of obtaining information on 3.1.2012, and they were kept in dark since 2002. Thus, it cannot be said that the plaintiffs have discovered the fact of execution of the registered sale on due diligence by obtaining such information after a period of 10 Page 23 of 30 Downloaded on : Sat Sep 16 21:05:18 IST 2023 NEUTRAL CITATION C/FA/554/2020 ORDER DATED: 10/07/2023 undefined years. Hence, the suit, which is otherwise barred under the provisions of Articles 58 and 59 of the Limitation Act, by way of clever drafting and by devising the cause of action, by alleging fraud an cheating; the suit only appears to have been instituted to frustrate the rights of the defendants.
(4) Decision delivered by Division Bench of this Court dated 11.10.2021 passed in First Appeal No.1547 of 2020, of which paragraphs 11, 11.3, 11.4 and 11.5 read as under:
11. Indisputably the appellant and respondents Nos.1 to 4 respectively are sister and brothers. The dispute is with regard to land bearing Survey No.46/6/A on the outskirt of Village : Bhat of District and Sub-District : Gandhinagar admeasuring 00-37-12 Hector-Are-Sq.Mtrs. The appellant is seeking one fifth share in the suit property. The appellant and respondents entered into a Partition Deed being a registered Partition Deed No.1599 of 1980 dated 8.12.1980 in the presence of confirming parties as stated above.
On the basis of said Partition Deed the appellant is seeking one fifth share in the suit property. The appellant and her mother were signatories to the Partition Deed. By the said Partition Deed the absolute share devolve with the respondent No.1. Having become the absolute owner of the suit land the respondent No.1 then transferred the suit land in favour of respondent No.4 by Registered Sale Deed dated 1.1.1981 being Entry No.2 of 1981. The appellant chose not to challenge the said Sale Deed dated 1.1.1981 within a period of three years by invoking Articles 58, 59 and 110 of the Limitation Act. Even if the period of limitation under Article of the Limitation Act would be taken into consideration, the period of limitation of twelve years also would be till 1.1.1992. The plaintiff instituted the suit in the year 2019 and could be said to be time barred. From the year 1992 to 2019 the suit land has changed hands Page 24 of 30 Downloaded on : Sat Sep 16 21:05:18 IST 2023 NEUTRAL CITATION C/FA/554/2020 ORDER DATED: 10/07/2023 undefined and being transferred from time to time between the respondent No.4 to respondent No.16.
11.3 In view of the undisputed facts that are emerging from the record and in view of the settled legal position as to rejection of plaint in cases of claim hopelessly barred by limitation and such claims cannot be brought into limitation by clever drafting. In the present case it is apparent from the record that the first partition deed and then the sale deeds have been executed in 1981. It is then there are various transactions by way of registered sale-deeds. And merely by citing an instance of 2019 the plaintiff have come before the court to challenge the sale-deeds executed from 1981 to 2019. This is nothing less than a clever piece of drafting so as to bring the suit in limitation which is clearly time barred.
11.4 It is also important to mention that the provisions of Order 7 Rule 11 are required to be invoked in cases such as the present one where the plaintiff try to use the legal machinery to disturb the rights which are well settled in favour of others so that such vexatious claims are thrashed at the inception.
11.5 In view of above, in our view it cannot be said that any error on fact or any error of law can be said to have been committed by the Court below in rejecting the plaint under Order 7 Rule 11 (d) of the Civil Procedure Code.
(5) Order passed by learned Single Judge dated 14.9.2022 in case of Civil Revision Application No.195 of 2022, since it is based upon the decision of the Hon'ble Apex Court, we deem it proper to quote para 13 hereunder:
13. The Limitation Act, 1963 prescribes a time-limit for the institution of all suits, appeals, and Page 25 of 30 Downloaded on : Sat Sep 16 21:05:18 IST 2023 NEUTRAL CITATION C/FA/554/2020 ORDER DATED: 10/07/2023 undefined applications. Section 2(j) defines the expression "period of limitation" to mean the period of limitation prescribed in the Schedule for suits, appeals or applications. Section 3 lays down that every suit instituted after the prescribed period, shall be dismissed even though limitation may not have been set up as a defence. If a suit is not covered by any specific article, then it would fall within the residuary article. Articles 58 and 59 of the Schedule to the 1963 Act, prescribe the period of limitation for filing a suit where a declaration is sought, or cancellation of an instrument, or rescission of a contract, which reads as under :
Description of suit Period of limitation Time from which period begins to run 58. To obtain any other declaration. Three years When the right to sue first accrues. 59. To cancel or set aside an Instrument or decree or for the rescission of a contract. Three years When the facts entitling the plaintiff to have the instrument or decree cancelled or set aside or the contract rescinded first become known to him.
Description of suit Period of limitation Time from which period begins to run
58. To obtain any other Three Years When the right declaration to sue first accrues.
59. To cancel or set aside an Three Years When the facts instrument or decree or for entitling the the rescission of a contract plaintiff to have the instrument or decree cancelled or set aside or the contract rescinded first become known to him.Page 26 of 30 Downloaded on : Sat Sep 16 21:05:18 IST 2023
NEUTRAL CITATION C/FA/554/2020 ORDER DATED: 10/07/2023 undefined The period of limitation prescribed under Articles 58 and 59 of the 1963 Act is three years, which commences from the date when the right to sue first accrues. In Khatri Hotels Pvt. Ltd. & Anr. v. Union of India & Anr., (2011) 9 S.C.C. 126, the Apex Court has held that the use of the word first between the words sue and accrued , would mean that if a suit is based on multiple causes of action, the period of limitation will begin to run from the date when the right to sue first accrues. That is, if there are successive violations of the right, it would not give rise to a fresh cause of action, and the suit will be liable to be dismissed, if it is beyond the period of limitation counted from the date when the right to sue first accrued.
(6) Learned Single Judge in the case of Emrald Co-operative Housing Society Ltd. v. Decd. Gulamkadar S/o. Gulam Husain Abdulkadar and Bai Shakarbu and otehrs reported in 2019 (2) GLH 559 as held and observed in paragraph 24 as under:
24. First of all, the paper book which has been supplied and the averments contained in the plaint are clearly indicating that sale deed has taken place on 12/13-5-1982. Said sale transaction is registered before the Office of Sub-Registrar, Kalol. It further indicates that the consideration of sale is passed on through cheque. So, the sale documents have taken place through bank transaction and the sale documents have been numbered in index at the office of Sub-Registrar. These documents, four in number, which are the subject matter of present proceedings are the documents on adequate stamp signed by the parties to the proceeding and the same have been registered before the competent authority way back in 1982 and sale has taken place through passing of consideration which has already been mentioned in the document. Secondly, this sale transaction has also been mutated in revenue record at a relevant point of time and the revenue entries have been effected in appropriate forms Page 27 of 30 Downloaded on : Sat Sep 16 21:05:18 IST 2023 NEUTRAL CITATION C/FA/554/2020 ORDER DATED: 10/07/2023 undefined related to it. These documents which are part of the plaint itself are indicating that present petitioner company has become the registered owner of the land in question. Thirdly, from the plaint itself, an indication is emerging that there are some revenue proceedings going on prior to filing of the suit.
Paragraph No.3 of the plaint itself postulates certain process which was carried out and then by making smart averments and projecting half truth, an attempt is made that only when Mamlatdar, Land Tribunal, Kalol has passed an order on 7.7.2008, the original plaintiffs came to know about the fact of execution of sale deed. Now these averments are indicating about the fact that proceedings under the Tenancy Act were going on and without serving notice, an order is passed and an impression is sought to be created that Aataji Chaturji was declared as deemed purchaser under section 32F on 31.12.1976 but by that time, Bai Shakarbu had expired on 9.4.1975. Now to understand and examine this bare assertion in the plaint, undisputedly the revenue proceedings which were carried out by the legal heirs of Bai Shakarbu are clearly suggesting that the plaint is based upon concealment of material fact and suppression of the facts which are touching to the root of controversy and this is in view of the fact that the revenue entry which has been effected pursuant to registered sale transaction appears to have been assailed after around 30 years by the legal heirs of deceased Bai Shakarbu and throughout the said revenue proceedings, the legal heirs of Bai Shakarbu have lost and this fact is clearly suppressed by the plaintiff in the suit. So, even for meaningful reading of the plaint and the cause of action, if these revenue proceedings are taken note of, it appears to be a clear attempt on the part of the plaintiff to abuse the process so much so that during the course of hearing, the attention is drawn to the appeal as well as revisional proceedings lost under the revenue law and this factum of sale in favour of the petitioner company was very much well within the knowledge of the legal heirs even prior to 2006 Page 28 of 30 Downloaded on : Sat Sep 16 21:05:18 IST 2023 NEUTRAL CITATION C/FA/554/2020 ORDER DATED: 10/07/2023 undefined when the appeal was filed. The assertion is examined by the Deputy Collector (Appeals) and the said appeal undisputedly filed by legal heirs of Bai Shakarbu after almost a period of 31 years has been dismissed on 20.5.2008 and the revision application was also dismissed vide order dated 27.8.2010. Now in that revision application also, it was clearly examined by revisional authority as is appearing from the paper book which has been supplied to the Court that Bai Shakarbu was served with the notice and then in 1976, an order was passed wherein it has also been clearly observed that throughout the proceedings, one Gulamkadar Gulamhusain has represented and remained present on behalf of Bai Shakarbu and as such, if the relevant circumstances, which are material, are taken note of, it appears that after loosing in revenue proceedings lodged after unreasonable period of several years, this suit has been filed in the year 2010 for the purpose of challenging registered sale which has taken place way back in 1982. So, this circumstance cannot be ignored while examining the issue interwoven with exercise of power under Order 7 Rule 11. For the purpose of meaningful reading of the plaint, from the documents attached to the plaint and the half-hearted truth which was unearthed during the course of hearing, it appears to this Court that suit proceedings have been aimed at some speculation rather than genuinely agitating so-called legal rights. The prayers which have been made in the suit are made which can be said to be a part of smart pleading to somehow bring the suit within the limitation and as such, the grievance which has been voiced out by the petitioner deserves serious consideration, looking to the conduct of the original plaintiffs."
23. In view of the aforesaid analysis and the proposition of law laid down by Hon'ble Apex Court, we are of the clear opinion that no case is made out to call for any interference, especially when factual data briefly summarized herein-before Page 29 of 30 Downloaded on : Sat Sep 16 21:05:18 IST 2023 NEUTRAL CITATION C/FA/554/2020 ORDER DATED: 10/07/2023 undefined is clearly indicating deemed knowledge of appellant indicating challenge in the revenue proceedings and then, after failure has tried to take shelter of the Civil Court which attempt since is belated and barred by limitation, learned Court below has rightly exercised the discretion.
24. At this stage, one fact which has been brought to our notice is taken note of that Mehboobbhai Peerbbhai- defendant No.6 has throughout not appeared before the Trial Court nor stepped into the proceedings, however he died during pendency of present First Appeal, with the result appropriate effect of Order-XXII Rule-4 and Rule-5 of Code of Civil Procedure will follow upon the legal heirs and representatives after coming out to agitate and as such keeping the aforesaid provisions in mind, present order will continue to operate.
25. With aforesaid observations, present First Appeal stands DISMISSED.
26. Since main appeal is dismissed, pending Civil Application does not survive and stands consigned to records.
(ASHUTOSH SHASTRI, J) (DIVYESH A. JOSHI,J) VAHID Page 30 of 30 Downloaded on : Sat Sep 16 21:05:18 IST 2023