Gujarat High Court
Chigrabhai Rajiyabhai Chudhari vs Balubhai Jagabhai Chaudhari on 12 March, 2025
Author: Sangeeta K. Vishen
Bench: Sangeeta K. Vishen
NEUTRAL CITATION
C/FA/3464/2017 JUDGMENT DATED: 12/03/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/FIRST APPEAL NO. 3464 of 2017
With
CIVIL APPLICATION (FOR STAY) NO. 1 of 2017
In R/FIRST APPEAL NO. 3464 of 2017
FOR APPROVAL AND SIGNATURE:
HONOURABLE MS. JUSTICE SANGEETA K. VISHEN
and
HONOURABLE MR. JUSTICE NIRAL R. MEHTA
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Approved for Reporting Yes No
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CHIGRABHAI RAJIYABHAI CHUDHARI & ORS.
Versus
BALUBHAI JAGABHAI CHAUDHARI & ORS.
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Appearance:
MR DIPAK R DAVE(1232) for the Appellant(s) No. 1,2,3,4
DECEASED LITIGANT THROUGH LEGAL HEIRS/ REPRESTENTATIVES
for the Defendant(s) No. 9
MR AMIT V THAKKAR(3073) for the Defendant(s) No. 6,7,8
MR NIRAV R MISHRA(6140) for the Defendant(s) No. 10,9.1,9.2,9.3,9.4,9.5
NOTICE SERVED for the Defendant(s) No.
1,2.1,2.2,2.3,3.1,3.2.1,3.2.2,3.2.3,3.3.4,3.3.5,3.3.6,4.1,4.2.2,5.1,5.2
NOTICE SERVED BY DS for the Defendant(s) No. 4.2.1
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CORAM:HONOURABLE MS. JUSTICE SANGEETA K. VISHEN
and
HONOURABLE MR. JUSTICE NIRAL R. MEHTA
Date : 12/03/2025
ORAL JUDGMENT
(PER : HONOURABLE MS. JUSTICE SANGEETA K. VISHEN) By this Appeal, the appellants have challenged judgment dated 28.04.2017 passed by learned Principal Senior Civil Judge, Bardoli by which, the Special Civil Suit no.8 of 2017 has been rejected.
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2. Vide order dated 03.11.2017, notice was issued for final disposal and the paper-book having been made available, the appeal is taken up for final disposal. For the sake of convenience, the parties are referred to as per their status in the Special Civil Suit no.8 of 2017.
3. Mr.Dipak Dave, learned advocate for the appellants- applicant-original plaintiffs, submitted that the Collector, by passing an order on 04.03.1978 granted permission to sell the land of which necessary mutation entry no.1484 has been posted in the revenue record and was certified on 30.05.1978. Thereafter, on 10.05.1978, a registered sale deed was executed by the forefathers of the plaintiffs and some of the plaintiffs in favour of defendant nos.6 to 8 with respect to land bearing survey no.91 block no.131 admeasuring acres 11
- gunthas 28 (hereinafter referred to as the 'land in question'). It is submitted that since division was not permissible, the sale deed was executed and thus, on the very same date, an agreement to sell was also executed between the parties, i.e. the plaintiffs and their forefathers on one hand and defendant no.6 on the other.
3.1 It is submitted that reference to the sale deed is made in the agreement to sell. It has been clearly stated that he being a contractor, since in need of land for quarrying, intended to retain 5-6 acres of land from the land in question. It was also agreed that a sale deed would be executed in favour of the plaintiffs without any consideration, along with the handing over of the possession, effectively making them the owners of Page 2 of 35 Uploaded by SINDHU NAIR(HC01395) on Tue Apr 01 2025 Downloaded on : Sat Apr 05 00:39:53 IST 2025 NEUTRAL CITATION C/FA/3464/2017 JUDGMENT DATED: 12/03/2025 undefined the land in question. It is submitted that the agreement to sell, clearly indicates that land, as per the need would be retained, and converted into non-agriculture, and thereafter, the sale deed would be executed for which, there would not be any time limit provided. It is submitted that the said agreement to sell-Exh.3 was very much forming part of the suit proceedings. It is submitted that the plaintiffs, were in continuous and in peaceful possession of the land in question. Since no time limit was provided, and the plaintiffs being in possession, no steps were taken; however, only in the year 2015, a sale deed was executed by defendant nos.6 to 8 in favour of defendant no.9. This refusal, led to grievances, prompting the plaintiffs to file a suit with multiple prayers, one of which, was for possession. It is further submitted that regarding agreement to sell, consideration was agreed not to be paid by the defendant no.6 at the time of execution of the sale deed. Since the plaintiffs claimed possession, the suit, has to go for trial, and hence, the aspect of limitation, would not arise. Moreover, given that the issue of limitation involves both mixed question of law and facts, the learned Judge ought not to have exercised the powers under Order VII Rule 11 of the Code of Civil Procedure, 1908 (hereinafter referred to as 'the Code').
3.2 It is further submitted that with regard to possession, numerous documents were placed on record including, village form nos.7 and 12, receipts and invoices for goods purchased for cultivation. Even the receipts issued by the authorities indicate that the plaintiffs made the payments. When there Page 3 of 35 Uploaded by SINDHU NAIR(HC01395) on Tue Apr 01 2025 Downloaded on : Sat Apr 05 00:39:53 IST 2025 NEUTRAL CITATION C/FA/3464/2017 JUDGMENT DATED: 12/03/2025 undefined are numerous documents placed on record, the learned Judge, ought to have appreciated them rather than rejecting the plaint, observing that none of the documents, prima facie, prove that the plaintiffs, are in possession of the land in question. It is submitted that it is well recognized principle that simple averments regarding possession are sufficient and for which, separate documents are not required to be placed on record. Therefore, the rejection of the plaint by the learned Judge, constitutes an erroneous exercise of discretion.
3.3 It is further submitted that as per one of the recitals in the agreement to sell, the issue of execution of sale deed would have arisen only when the land is converted into non- agriculture (hereinafter referred to as 'NA'). In the present case, an NA application for a portion of land was filed and which was granted in the year 1978 vide order dated 14.09.1978, the necessary entry was also made in the revenue record; however, it pertained only for the part of the land. Expressing inability that unless and until the land in question is fully converted into NA, it would not be possible to execute the sale deed, assurances were extended by defendant nos.6 to 8 that the sale deed, would be executed. Accepting these assurances and the fact that plaintiffs were in possession, no steps were taken. It is further submitted that it is only when the sale deed was executed in the year 2015 the suit has been filed, seeking specific performance of the agreement to sell dated 10.05.1978; and challenges the sale deed dated 10.05.1978 and the registered sale deed of Page 4 of 35 Uploaded by SINDHU NAIR(HC01395) on Tue Apr 01 2025 Downloaded on : Sat Apr 05 00:39:53 IST 2025 NEUTRAL CITATION C/FA/3464/2017 JUDGMENT DATED: 12/03/2025 undefined the year 2015. The plaintiffs also seek protection of their possession, as they have been in continuous possession of the land in question. It is further submitted that the learned Judge, while exercising suo motu powers, focused only on the specific performance, and rejected the plaint. What weighed with the learned Judge, was firstly; that none of the documents prima facie prove that the plaintiffs were ever in possession of the land in question. Secondly; the specific performance is prayed for an agreement to sell of the year 1978 and no reasonable excuse has been offered for the delay of approximately 38 years. Thirdly, the documentary evidence produced by the plaintiffs suggests that the suit is barred by law of limitation. Lastly, the plaint does not disclose any cause of action. Considering these aspects, the learned Judge, was of the opinion that a plain reading of the suit suggests that it is illusory, false, frivolous and vexatious cause of action.
3.4 It is further submitted that there lies a fallacy in the observations made by the learned Judge. It is a well settled principle that even if one prayer survives, the plaint, ought not to have been rejected. It is submitted that all the prayers, claimed by the plaintiffs, were independent of each other. Prayer of possession was very much available to have been granted. Prayer clause-6 of para-13, was a prayer seeking protection of the possession on the ground that no one has a right to interfere with it. Therefore, rejection of the plaint by focusing solely on specific performance, was illegal and bad.
3.5 It is further submitted that the documents placed on Page 5 of 35 Uploaded by SINDHU NAIR(HC01395) on Tue Apr 01 2025 Downloaded on : Sat Apr 05 00:39:53 IST 2025 NEUTRAL CITATION C/FA/3464/2017 JUDGMENT DATED: 12/03/2025 undefined record substantiate possession. The key issue would be whether the plaintiffs were in possession or not, which would be a disputed issue. However, the learned Judge, has discussed the evidence and was of the opinion that the production of the bills, receipts containing their names and along with payment of revenue tax is not sufficient to establish any rights regarding any property. The sufficiency of evidence, ought to have been thoroughly examined by the learned Judge. It is, therefore, submitted that on this ground alone, the judgment deserves to be quashed and set aside. It is submitted that when the sale deed was executed in the year 2015, the refusal to execute sale deed was deemed. Immediately in the year 2017, the suit has been filed. In such a situation, the limitation would not apply. Even if it did, it would be a mixed question of law and fact.
3.6 Reliance is placed on the judgment in the case of Sejal Glass Ltd. vs. Navilan Merchants Pvt. Ltd. reported in (2018) 11 SCC 780 wherein, it has been held and observed that where plaint as a whole did not disclose cause of action, the provision of Order VII Rule 11 is applicable. Besides, where it appears that the plaint cannot be proceeded with in some part, but it can be proceeded in another part, Order VII Rule 11 has no application. Reliance is also placed on the judgment in the case of C. Natrajan vs. Ashim bai reported in (2007) 14 SCC 183 wherein, it has been held and observed that applicability of one or the other provisions of the Limitation Act per se, cannot be decisive for the purpose of determining the question as to whether the suit is barred under one or the Page 6 of 35 Uploaded by SINDHU NAIR(HC01395) on Tue Apr 01 2025 Downloaded on : Sat Apr 05 00:39:53 IST 2025 NEUTRAL CITATION C/FA/3464/2017 JUDGMENT DATED: 12/03/2025 undefined other Article contained in the schedule appended to the Limitation Act. It is therefore, urged that the judgment deserves to be quashed and set aside.
4. Mr.Nirav Mishra, learned advocate appearing for the defendant no.9, while inviting attention to the pedigree (page 127 of the paper-book) submitted that the ancestors of the plaintiffs, had a huge legacy and some of the heirs, were parties to the agreement to sell. The land, was under joint ownership and the plaintiff nos.1, 2 and 4, would not have an exclusive right over the land. At the most, they can claim only as per their share. It is further submitted that in the plaint itself, the plaintiffs state that they are the heirs of two brothers. The land, belongs to the plaintiffs and the defendants; however, the defendants, have not filed any suit. It is only the plaintiffs, who have approached the Court below. It is further submitted that in paragraph 8 of the plaint, the plaintiffs, indicated the cause of action; however, bare reading of the averments suggests that no cause of action had arisen. A vague cause of action has been stated only with a view to circumventing the limitation. The execution of the sale deed of the year 2013, is nothing but a bald excuse. Clearly, the plaintiff no.1 was very much a party to the registered sale deed and the agreement to sell executed in the year 1978 and knowingly, the plaintiffs have parted with the land in question. Hence, indicating that the cause of action arose only after the execution of the registered sale deed in the year 2015, is nothing, but a lame attempt by the plaintiffs to create an illusory cause of action.
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5. Mr.Amit V. Thakkar, learned advocate assisted by Mr.Hiren Pandya learned advocate for the defendant nos.6 to 8, submitted that the permission was granted by the Collector in the year 1978, followed by posting of the mutation entry in the revenue record on 09.03.1978, which was certified on 30.05.1978. It is thereafter, on 10.05.1978, a registered sale deed came to be executed in favour of defendant nos.6 to 8. Along with a registered sale deed, agreement to sell was also executed. It is submitted that for all these years i.e. almost close to 40 years, no steps were taken. The plaintiffs, after 40 years, are now claiming their rights based on the agreement to sell. It is not that the execution of the registered sale deed and agreement to sell, was unknown to the plaintiffs. Moreover, the first generation did not take any steps and some of the forefathers as indicated in the plaint, had passed away between the years 1990 and 2014. It is submitted that the entire generation who was party to the execution of the registered sale deed and agreement to sell, has passed away and never took any steps. They, never raised any challenge to either the sale deed or sought specific performance of the agreement to sell. It is further submitted that only after the execution of the registered sale deed in the year 2015 with the intent to extracting money, suit is filed. It is also submitted that the suit has been filed only by some of the co- owners; whereas, other co-owners have chosen not to take Page 8 of 35 Uploaded by SINDHU NAIR(HC01395) on Tue Apr 01 2025 Downloaded on : Sat Apr 05 00:39:53 IST 2025 NEUTRAL CITATION C/FA/3464/2017 JUDGMENT DATED: 12/03/2025 undefined any steps.
5.1 While reiterating, it is submitted that the permission from the Collector was granted in the year 1978 and the plaintiffs were aware of the sale deed and the mutation entry. Now, after 40 years to claim that the execution of the sale deed is illegal and invalid, would be impermissible. The plaintiffs, cannot take advantage of ignorance of law. It is further submitted that the sale deed, was executed for entire parcel of land and now, to come out with a theory that only portion of the land was sold while, rest was retained coupled with the execution of the sale deed after receipt of the non- agriculture permission, is only an excuse to come out from the limitation. Such a stand taken by the plaintiffs, is nothing but clever drafting. It is further submitted that a stand is also taken that the plaintiffs, were kept in dark. Such allegations are without any basis and would also fall within the term 'clever drafting'.
5.2 It is further submitted that as far as the cause of action stated by the plaintiffs, is concerned, it has been stated that the forefathers of the plaintiffs, the plaintiffs and the defendants frequently met each other and requested the execution of the sale deed. However, a stand is taken that the assurance was extended by the defendant No.6 who expressed inability to execute the sale deed. It is submitted that the plaintiffs and their forefathers relied upon the assurance and did not take any steps, is nothing but clever drafting. It is submitted that if there was tacit refusal, the plaintiffs, ought to have taken the steps immediately by filing Page 9 of 35 Uploaded by SINDHU NAIR(HC01395) on Tue Apr 01 2025 Downloaded on : Sat Apr 05 00:39:53 IST 2025 NEUTRAL CITATION C/FA/3464/2017 JUDGMENT DATED: 12/03/2025 undefined the suit, within the limitation provided of 3 years. No steps were taken either by the forefathers or by the plaintiffs. There is an admission in the plaint that they have not taken any steps. Therefore, reading the plaint as a whole, it transpires that nothing has been done. It is further submitted that over the passage of time, the price of the land, has increased steeply and the suit has been filed only with a view to extort money. It is further submitted that there are catena of judgments, wherein it has been settled that vexatious suit or the suit without any cause of action, should be nipped in the bud.
5.3 It is further submitted that the prayers prayed for in the plaint, are for seeking the specific performance of the agreement to sell dated 10.05.1978, the registered sale deed dated 10.05.1978, and seeking an injunction and protection of the possession. It is submitted that Article 54 of the Limitation Act provides a for limitation period of three years for filing a suit for specific performance. The time from which the period begins, is in two parts; one, if the date is fixed for the performance and another, if no such date is fixed. In the present case, obtaining NA permission itself was suggestive of the fact that time was fixed and, NA was obtained within three years. Therefore, the plaintiffs, ought to have laid a challenge to the agreement to sell and sale deed, both dated 10.05.1978 at the earliest. It is also submitted that if there was any inaction on the part of defendant No.6, the plaintiffs, ought to have given notice; however, for all these years, no notice was served. In the absence of any notice, it is not open Page 10 of 35 Uploaded by SINDHU NAIR(HC01395) on Tue Apr 01 2025 Downloaded on : Sat Apr 05 00:39:53 IST 2025 NEUTRAL CITATION C/FA/3464/2017 JUDGMENT DATED: 12/03/2025 undefined to the plaintiffs, to claim that they were waiting for the NA permission to be in place.
5.4 Reliance is placed on the judgment in case of Vrundavan Cooperative Housing Society Limited Thru. Alpeshbhai Chimanbhai Patel vs. Vrundavan Development Corporation reported in 2024(0) AIJEL-SC-248768. It has been held and observed that if the allegations are vexatious and meritless and do not disclose a clear right or material to sue, it is the duty of the trial Judge to exercise his power under Order VII Rule 11. If clever drafting has created the illusion of a cause of action, it should be nipped in the bud at the first hearing by examining the parties under Order X of the Code. It is further held and observed that on a meaningful and not a formal reading of the plaint, it is found that the plaint is vexatious or meritless in the sense of not disclosing a clear right to sue, the plaint should be dismissed at the threshold.
5.5 Reliance is also placed on the judgment in the case of Kiranbhai Motibhai Patel Lh Of Decd vs. Suraj Co Operative Housing And Commercial Society Ltd. reported in 2022(0) AIJEL-SC-243947. The coordinate Bench, when it found that it did not involve any mixed question of law and facts, applied the principle laid down by the Apex Court in various judgments. The coordinate Bench, rejected the appeal by accepting the judgment of the trial court on the ground that it did not commit any error. It has been held and observed that if the main relief of quashing of the sale deed is not maintainable, the consequential relief cannot be granted. It is submitted that when the suit is barred by limitation for Page 11 of 35 Uploaded by SINDHU NAIR(HC01395) on Tue Apr 01 2025 Downloaded on : Sat Apr 05 00:39:53 IST 2025 NEUTRAL CITATION C/FA/3464/2017 JUDGMENT DATED: 12/03/2025 undefined challenging the sale deed and agreement to sell, the consequential relief of the possession, would also not be maintainable.
5.6 Reliance is also placed on the judgment in the case of Shri Mukund Bhavan Trust & others vs. Shrimant Chhatrapati Udayan Raje Pratapsinh Maharaj Bhonsle & another reported in 2024 SCC Online SC 3844. It has been held and observed that though the question of limitation generally is a mixed question of law and facts, when upon meaningful reading of the plaint, the court, after dissecting the vices of clever drafting creating an illusion of cause of action, can come to a conclusion that under the given circumstances, the suit is hopelessly barred and the plaint, can be rejected under Order VII Rule 11. The Apex Court, when found that the party did not approach the court in time; it observed that a prudent man, would take immediate and necessary steps to protect his interest. Failure to do so, and creation of a fictional date for cause of action, would render the plaintiff liable to have their suit dismissed on the ground of limitation. Reliance is also placed on paragraphs 24 and 26 to contend that the cause of action, must be necessary and not illusory. The spirit and intent of Order VII Rule 11 are for courts to dismiss the suits at the threshold, when any litigation ex facie appears to be a clear abuse of process. Courts being reluctant, only cause more harm to the defendants by forcing them to undergo the ordeal of leading evidence. Therefore, the Court rejected the plaint at the threshold.
5.7 Reliance is also placed on the judgment in the case of Page 12 of 35 Uploaded by SINDHU NAIR(HC01395) on Tue Apr 01 2025 Downloaded on : Sat Apr 05 00:39:53 IST 2025 NEUTRAL CITATION C/FA/3464/2017 JUDGMENT DATED: 12/03/2025 undefined Raghwendra Sharan Singh vs. Ram Prasanna Singh (Dead) by Legal Representatives reported in (2020) 16 SCC 601, with a specific reliance on para-6.3. Judgment of the Apex Court in the case of Ram Singh vs. Gram Panchayat Mehal Kalan reported in (1986) 4 SCC 364 was referred to wherein, it has been held that if the suit is barred by the law, plaintiffs cannot be allowed to circumvent the provision, by means of clever drafting and to avoid mentioning of those circumstances by which the suit is barred by law of limitation. In the said case, no steps were taken for almost 22 years and in the interregnum, various developments took place. Considering the averments and the bundle of facts stated in the plaint, it has been held and observed that the plaintiffs, by clever drafting, have tried to bring the suit within the period of limitation which otherwise, was barred by it.
5.8 Reliance is also placed on the judgment in the case of Maharaj Shri Manvendrasinhji Ranjitsinhji Jadeja vs. Rajmata Vijaykunverba Wd/o. Late Maharaja Mahendrasinhji reported in 1991 (1) GLR 261. It is held and observed that while deciding application filed under Order VII Rule 11(a) of the Code, the Court has to apply the statutory law as well as case- law to the facts pleaded in the plaint and find out whether any cause of action is disclosed or not. If such an attempt is made, it could hardly be said that the merits of the case are taken into consideration while deciding application for rejection of the plaint as not disclosing any cause of action. It is, therefore, submitted that a limited inquiry to the merits for finding out as to whether any cause of action is disclosed or Page 13 of 35 Uploaded by SINDHU NAIR(HC01395) on Tue Apr 01 2025 Downloaded on : Sat Apr 05 00:39:53 IST 2025 NEUTRAL CITATION C/FA/3464/2017 JUDGMENT DATED: 12/03/2025 undefined not while deciding application for rejection of the plaint, is a permissible exercise.
5.9 Reliance is also placed on the judgment in the case of Sabbir (Dead) Through Lrs vs. Anjuman (since deceased) Through LRs reported in 2023 SCC Online SC 1292. It is submitted that despite there being the time limit provided, the Apex Court, held and observed that it would be impermissible for the party to take a plea that they would be entitled to wait indefinitely till the appellants inform them about the permission. Immediately after the expiry of the limited period, due diligence ought to have been shown by being vigilant and conscious of their rights and were required to act promptly. In the present case, the plaintiffs, failed to clear the test of being vigilant showing due diligence or being vigilant and conscious of their right inasmuch as, the plaintiffs, did not take any steps promptly and waited for almost 40 years.
5.10 Reference has also been made to the judgment of the Apex Court in the case of Basawaraj vs. Land Acquisition Officer reported in (2013) 14 SCC 81 wherein, it has been held and observed that the law of limitation may harshly affect a particular party but it has to be applied with all its rigor. It is held and observed that the court has no power to extend the period of limitation on equitable ground. In the case on hand, plaintiffs, did not take any step for almost 40 years and were dormant and hence, if the plaintiffs were not vigilant of their rights, their suit, has been rightly dismissed it being barred by limitation. Mr.Amit Thakkar, learned advocate, has summarized his submissions thus:
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5.12 It is submitted that the suit is vexatious, frivolous with vague averments, not specifying the particular date and time as to when and where the plaintiffs met the defendants and Page 15 of 35 Uploaded by SINDHU NAIR(HC01395) on Tue Apr 01 2025 Downloaded on : Sat Apr 05 00:39:53 IST 2025 NEUTRAL CITATION C/FA/3464/2017 JUDGMENT DATED: 12/03/2025 undefined how the assurance was given. The vague averments made in the plaint, is nothing but the result of clever drafting to get out of the clutches of the limitation and hence, the learned Judge, rightly exercised the powers under Order VII Rule 11 and rejected the plaint. It having not committed any error, the appeal, deserves not to be entertained. When the main relief itself is not capable of being granted, the consequential relief of the possession, would automatically go.
6. Mr.Dipak R. Dave, learned advocate, in brief rejoinder, submitted that except one, in all the judgments cited; there were registered documents and hence, there would be an inference of knowledge of execution of the document.
Therefore, the starting point of limitation, is deemed knowledge and, the issue of the limitation, was not mixed question of law and fact, as against the issue of limitation in the present case, when there was no time limit in the agreement to sell provided about executing the sale deed in favour of the plaintiffs. Reliance is placed on the judgment in the case of Urvashiben & Anr. vs. Krishnakant Manuprasad Trivedi reported in 2018 Law Suit (SC) 1280. It has been held and observed that so far as the issue of limitation is concerned, it is a mixed question of fact and law. It is true that limitation can be a ground for rejection of the plaint in exercise of the powers under Order VII Rule 11(d) of the Code, but it is equally well settled that for the purpose of deciding application, the averments stated in the plaint alone can be looked into. It is further held and observed that if an allegation is made, it would be a matter of trial to verify the Page 16 of 35 Uploaded by SINDHU NAIR(HC01395) on Tue Apr 01 2025 Downloaded on : Sat Apr 05 00:39:53 IST 2025 NEUTRAL CITATION C/FA/3464/2017 JUDGMENT DATED: 12/03/2025 undefined correctness or otherwise. While considering the provisions of Article 54, it has been pointed out that the limitation, is in two parts, namely; date fixed for the performance and if no such date is fixed. It has been pointed out that the suit for specific performance falling in the latter part, period of limitation is of three years from the date when it comes to the notice of the plaintiff, that performance is refused by the defendants. In the case on hand, the tacit refusal, was only in the year 2015 when the sale deed was executed. Also, in the year 2014, NA permission was sought for, for whole of land and only thereafter, as per the recital of the agreement to sell, the sale deed was to be executed. The permission, by the Collector, is granted in the month of December, 2014 whereas the suit has been filed in the month of March, 2017 which would be, well within the period of limitation.
6.1. Reliance is also placed on the judgment in the case of Chhotanben & Anr. vs. Kiritbhai Jalkrushnabhai Thakkar and Ors. reported in 2018 LawSuit(SC) 314. The case of plaintiffs' was that they were not aware about the execution of the registered sale deed concerning their ancestral property and denied their thumb impression on it. The Apex Court, therefore, held that in the context of the totality of the averments in the plaint and the reliefs claimed, which of the Articles from amongst Articles in the Limitation Act, would apply to the facts of the present case, would have to be considered at the appropriate stage. Reliance is also placed on the judgment in the case of Eldeco Housing And Industries Limited vs. Ashok Vidyarthi & Ors. reported in 2023 Page 17 of 35 Uploaded by SINDHU NAIR(HC01395) on Tue Apr 01 2025 Downloaded on : Sat Apr 05 00:39:53 IST 2025 NEUTRAL CITATION C/FA/3464/2017 JUDGMENT DATED: 12/03/2025 undefined LawSuit(SC) 1165. Further reliance is placed on the judgment in the case of Bhanuben Kantilal Patel vs. Deceased Harishchandrasinh Jadeja reported in 2024 (1) GLR 618. Specific reliance is placed on the observations made in para- 18 wherein, it has been noted that the statement made would be enough and it cannot be denied, which otherwise, would be the matter of trial and can be decided by leading an evidence.
7. Heard the learned Advocates appearing for the respective parties. Perused and considered the record including the paper-book made available by the appellant. Though served, the defendant nos.1,2.1 to 2.3, 3.1, 3.2.1 to 3.2.3, 3.3.1 to 3.3.3, 4.1,4.2.1-4.2.2, 5.1-5.2 have chosen not to enter appearance.
8. Tersely stated are the facts.
9. Discernibly, on 04.03.1978 permission was granted to sell the land and accordingly, entry no. 1484 dated 09.03.1978 was posted in the revenue record and certified on 13.05.1978. The entry records the order passed by the revenue authorities granting the permission to sell the land by charging premium on certain terms and conditions. It is thereafter on 10.05.1978, a registered sale deed came to be executed in favour of defendant nos. 6 to 8 with respect to the land in question. Agreement to sell of the even date was executed between the parties namely the defendant no. 6 on one hand and forefathers of the plaintiffs and some of the plaintiffs on the other. The agreement to sell records the sale transaction with respect to the land in question and its Page 18 of 35 Uploaded by SINDHU NAIR(HC01395) on Tue Apr 01 2025 Downloaded on : Sat Apr 05 00:39:53 IST 2025 NEUTRAL CITATION C/FA/3464/2017 JUDGMENT DATED: 12/03/2025 undefined registration with the office of the sub-registrar. Reference is also made of permission to sell the land in favour of defendant nos. 6 and others. The agreement to sell makes a reference of the fact that defendant no.6 is a contractor and is in need of approximately 5 to 6 acres of land. In view of lack of clarity, it was agreed that after carrying out correct measurement and after the requirement of the exact land, rest of the land would be returned back executing a sale deed by the defendant no. 6 without any consideration. The agreement to sell also makes a reference of handing over of the possession of the land on the ownership basis. It was agreed between the parties that it would not be possible to fix the limitation considering the lack of clarity about the need of the land required for the purpose of quarry. It was also agreed between the parties that after the land is converted into NA, the sale deed shall be executed and for which, there is no time limit provided. The agreement further states that if the defendant no. 6 fails to act as per the conditions, it would be open for the other party to get the specific performance of the agreement to sell.
10. Furthermore, application was filed seeking conversion of the land from agricultural to non-agricultural which, was allowed by order dated 14.09.1978 with respect to 1 acre and 20 gunthas of the land in question, on certain terms and conditions. Necessary entry no. 1486 was posted in the revenue record on 20.09.1978 and was thereafter certified, of which, there is no dispute. In the year 2015, registered sale deed came to be executed by the defendant nos. 6 to 8 in favour of defendant nos. 9 and 10 which, gave rise to the filing Page 19 of 35 Uploaded by SINDHU NAIR(HC01395) on Tue Apr 01 2025 Downloaded on : Sat Apr 05 00:39:53 IST 2025 NEUTRAL CITATION C/FA/3464/2017 JUDGMENT DATED: 12/03/2025 undefined of the suit being Special Civil Suit no. 8 of 2017 seeking various reliefs, such as, seeking specific performance of the agreement to sell dated 10.05.1978 on the ground that despite the currency of the agreement to sell, defendant nos. 6 to 8 have executed the registered sale deed dated 23.04.2015 in favour of the defendant nos 9 and 10. Challenge is also to the registered sale deed dated 23.05.2015 coupled with prayer for protection of possession. In addition to the above referred two prayers, the plaintiffs have also sought to challenge the registered sale deed dated 10.05.1978, it being illegal and void. Considering the averments in the application, the learned Principal Senior Civil Judge passed an order dated 28.04.2017 below Exh. 1 and 5, rejecting the plaint on the ground that the suit is not maintainable, it being barred by law. Being aggrieved, that the appellants-original plaintiffs have filed the captioned appeal.
11. Various submissions have been made by the learned Advocates appearing for the respective parties. The stand taken by the original plaintiffs is that when there are multiple reliefs prayed for, the plaint ought not to have been rejected, exercising the powers under Order VII Rule 11, asmuch as, if one of the reliefs is capable of being granted, the suit cannot be rejected. On the the other hand, stand taken by the defendant nos. 6 to 8 is that when the main relief is not capable of being granted, the consequential relief cannot be prayed for and has rightly been rejected.
12. In view of the submissions made and recorded in the preceding paragraphs, the issue which arises for Page 20 of 35 Uploaded by SINDHU NAIR(HC01395) on Tue Apr 01 2025 Downloaded on : Sat Apr 05 00:39:53 IST 2025 NEUTRAL CITATION C/FA/3464/2017 JUDGMENT DATED: 12/03/2025 undefined consideration of this Court is whether the learned Judge was justified in rejecting the plaint by exercising the powers under Order VII Rule 11, inter alia, on the ground that the suit filed by the plaintiffs seeking specific performance of the agreement to sell of the year 1978, cannot be entertained as, no reasonable excuse is offered by the plaintiffs for the delay of approximately 38 years in filing the suit. For considering the said issue, it would be rather apt to discuss the averments made in the plaint as, it is by now well settled that the plaint and the documents together with the plaint can be only considered for the purpose of exercising the powers under Order VII Rule 11 for rejecting the plaint.
13. It is the stand taken by the plaintiffs that the land in question belonged to the family of the plaintiffs. Some of the family members have passed away. Revenue record has been referred to indicating the entries in their favour of allotting the land by the government on new and impartible basis. It is the case of the plaintiffs that the land was of new and impartible tenure and since there were possibilities of land being used for the purpose of quarry, it was decided among the parties to sell the land. The land was initially sold to the defendant no. 6 on the general stamp paper with an understanding that after the land which is not capable of being used for quarry, the same shall be returned by executing a registered sale deed without consideration. This was reduced in writing by way of agreement to sell. It is the stand taken by the plaintiffs that accordingly on 10.05.1978, two things happened; one, execution of the registered sale Page 21 of 35 Uploaded by SINDHU NAIR(HC01395) on Tue Apr 01 2025 Downloaded on : Sat Apr 05 00:39:53 IST 2025 NEUTRAL CITATION C/FA/3464/2017 JUDGMENT DATED: 12/03/2025 undefined deed in favour of defendant no. 6 and agreement to sell. The stand taken is that necessary permission was obtained for the purpose of sale which was duly granted by the revenue authorities, upon payment of the premium and accordingly sale deed was executed. Necessary entries were posted in the revenue record. It is further the case of the plaintiffs that 1 acre and 20 gunthas, out of the total land in question was converted to NA for the purpose of quarrying. Further, stand is taken by the plaintiffs that the forefathers of the plaintiffs were illiterate and unaware about the nuances of the law. It is also averred that the forefathers of the plaintiffs were requesting the defendant nos. 6 to 8 to execute the sale deed; inability was expressed for executing the sale deed on the ground that unless the land is converted to NA, sale deed cannot be executed. However, the defendant no. 6 kept extending assurances that the sale deed would be executed. In the year 2014 i.e. on 09.12.2014, the land was converted for NA purpose and the defendant nos. 6 to 8 surreptitiously and behind the back of the plaintiffs executed a registered sale deed dated 23.02.2015, in favour of defendant nos. 9 to
10. It is the case of the plaintiffs that when they inquired, it came to the notice that there is a registered sale deed executed and immediately, the suit has been filed by the plaintiffs. Therefore, the plaintiffs have raised the issues namely that since it was not possible to effect the division that the land was agreed to be sold by executing a registered sale deed; with a specific understanding that after the requirement is satisfied of the defendant no. 6 for the area of quarry, for the remaining land, there shall be a registered sale deed Page 22 of 35 Uploaded by SINDHU NAIR(HC01395) on Tue Apr 01 2025 Downloaded on : Sat Apr 05 00:39:53 IST 2025 NEUTRAL CITATION C/FA/3464/2017 JUDGMENT DATED: 12/03/2025 undefined executed in the favour of the plaintiffs. The claim of the plaintiffs is that all throughout, they were assured that the sale deed would be executed in their favour. Also, they were in peaceful possession of the land in question and were cultivating the same.
14. In support of the claim of the possession, voluminous documents have been placed on record together with the plaint in the form of invoices of the years 2009, 2015 and 2016, issued indicating the purchase of materials for purpose of cultivation. In addition to the invoices, the plaintiffs have also placed on record the receipt issued under form no. 8B endorsing the payment made of the local fund and revenue by the plaintiffs of the year 1982, 1983, 1998, 2012 etc. The plaintiffs have also placed on record the excerpts of the balance sheet of Medha Vibhaag Khand Udhyog Sarkari mandali of the year 1994-1995 and invoices issued by the said mandali. By placing reliance on the documents, it is the stand taken by the plaintiffs that the plaintiffs are in possession of the land in question and have been cultivating the same. It is categorically averred by the plaintiffs that they are tribal and they don't have any other means except agricultural activities. It is also claimed that they are illiterate and unable to read and write. It is also claim of the plaintiffs that the forefathers have passed away; however, the land on the southern side was being cultivated by the plaintiffs in view of the understanding arrived at, as per the sale deed. It is specific stand taken that the plaintiffs have been taking the crops, paying the revenue, selling the crops to the cooperative society/mandlis. It is a Page 23 of 35 Uploaded by SINDHU NAIR(HC01395) on Tue Apr 01 2025 Downloaded on : Sat Apr 05 00:39:53 IST 2025 NEUTRAL CITATION C/FA/3464/2017 JUDGMENT DATED: 12/03/2025 undefined specific case of the plaintiffs that the land required for excavating minerals was approximately 5 to 6 acres which was agreed to be purchased and out of the total land in question only in 1 acre and 20 gunthas, the defendants have been undertaking the work of quarry and in the rest, the plaintiffs were in possession and were doing cultivation.
15. At this stage, the judgment in the case of Dahiben vs. Arvindbhai Kalyanji Bhanusali (Gajra) dead through legal representaives and others reported in (2020) 7 SCC 366 is worth referring to which has been in detail referred to in the judgment in the case of Eldeco Housing Industries Limited vs. Ashok Vidyarthi & Ors. (supra). Paragraphs 23.2 to 23.15 are reproduced hereinbelow for ready reference.
"23.2. The remedy under Order 7 Rule 11 is an independent and special remedy, wherein the court is empowered to summarily dismiss a suit at the threshold, without proceeding to record evidence, and conducting a trial, on the basis of the evidence adduced, if it is satisfied that the action should be terminated on any of the grounds contained in this provision.
23.3. The underlying object of Order 7 Rule 11(a) is that if in a suit, no cause of action is disclosed, or the suit is barred by limitation under Rule 11(d), the court would not permit the plaintiff to unnecessarily protract the proceedings in the suit. In such a case, it would be necessary to put an end to the sham litigation, so that further judicial time is not wasted.
23.4. In Azhar Hussain v. Rajiv Gandhi, 1986 Supp SCC 315, this Court held that the whole purpose of conferment of powers under this provision is to ensure that a litigation which is meaningless, and bound to prove abortive, should not be permitted to waste judicial time of the court, in the following words :
"12. ... The whole purpose of conferment of such powers is to ensure that a litigation which is meaningless, and bound to prove abortive should not be permitted to occupy the time of the court, and exercise the mind of the respondent. The Page 24 of 35 Uploaded by SINDHU NAIR(HC01395) on Tue Apr 01 2025 Downloaded on : Sat Apr 05 00:39:53 IST 2025 NEUTRAL CITATION C/FA/3464/2017 JUDGMENT DATED: 12/03/2025 undefined sword of Damocles need not be kept hanging over his head unnecessarily without point or purpose. Even in an ordinary civil litigation, the court readily exercises the power to reject a plaint, if it does not disclose any cause of action."
23.5. The power conferred on the court to terminate a civil action is, however, a drastic one, and the conditions enumerated in Order 7 Rule 11 are required to be strictly adhered to.
23.6. Under Order 7 Rule 11, a duty is cast on the court to determine whether the plaint discloses a cause of action by scrutinising the averments in the plaint [Liverpool & London S.P. & I Assn. Ltd. v. M.V. Sea Success I, (2004) 9 SCC 512] , read in conjunction with the documents relied upon, or whether the suit is barred by any law.
xx xx xx 23.9. In exercise of power under this provision, the court would determine if the assertions made in the plaint are contrary to statutory law, or judicial dicta, for deciding whether a case for rejecting the plaint at the threshold is made out.
23.10. At this stage, the pleas taken by the defendant in the written statement and application for rejection of the plaint on the merits, would be irrelevant, and cannot be adverted to, or taken into consideration. [Sopan Sukhdeo Sable v. Charity Commr., (2004) 3 SCC 137] 23.11. The test for exercising the power under Order 7 Rule 11 is that if the averments made in the plaint are taken in entirety, in conjunction with the documents relied upon, would the same result in a decree being passed. This test was laid down in Liverpool & London S.P. & I Assn. Ltd. v. M.V. Sea Success I [Liverpool & London S.P. & I Assn. Ltd. v. M.V. Sea Success I, (2004) 9 SCC 512] which reads as : (SCC p. 562, para 139) "139. Whether a plaint discloses a cause of action or not is essentially a question of fact. But whether it does or does not must be found out from reading the plaint itself. For the said purpose, the averments made in the plaint in their entirety must be held to be correct. The test is as to whether if the averments made in the plaint are taken to be correct in their entirety, a decree would be passed."
23.12. In Hardesh Ores (P) Ltd. v. Hede & Co. [Hardesh Ores (P) Ltd. v. Hede & Co., (2007) 5 SCC 614] the Court further held that it is not permissible to cull out a sentence or a Page 25 of 35 Uploaded by SINDHU NAIR(HC01395) on Tue Apr 01 2025 Downloaded on : Sat Apr 05 00:39:53 IST 2025 NEUTRAL CITATION C/FA/3464/2017 JUDGMENT DATED: 12/03/2025 undefined passage, and to read it in isolation. It is the substance, and not merely the form, which has to be looked into. The plaint has to be construed as it stands, without addition or subtraction of words. If the allegations in the plaint prima facie show a cause of action, the court cannot embark upon an enquiry whether the allegations are true in fact. D. Ramachandran v. R.V.Janakiraman, (1999) 3 SCC 267; See also Vijay Pratap Singh v. Dukh Haran Nath Singh, AIR 1962 SC 941].
23.13. If on a meaningful reading of the plaint, it is found that the suit is manifestly vexatious and without any merit, and does not disclose a right to sue, the court would be justified in exercising the power under Order 7 Rule 11 CPC.
23.14. The power under Order 7 Rule 11 CPC may be exercised by the court at any stage of the suit, either before registering the plaint, or after issuing summons to the defendant, or before conclusion of the trial, as held by this Court in the judgment of Saleem Bhai v. State of Maharashtra, (2003) 1 SCC 557. The plea that once issues are framed, the matter must necessarily go to trial was repelled by this Court in Azhar Hussain v. Rajiv Gandhi, 1986 Supp SCC 315. Followed in Manvendrasinhji Ranjitsinhji Jadeja v. Vijaykunverba, (1998) 2 GLH 823 : 1998 SCC OnLine Guj 281.
23.15. The provision of Order 7 Rule 11 is mandatory in nature. It states that the plaint "shall" be rejected if any of the grounds specified in clauses (a) to (e) are made out. If the court finds that the plaint does not disclose a cause of action, or that the suit is barred by any law, the court has no option, but to reject the plaint."
16. Yet in another decision in the case of Chhotanben & Anr. vs. Kiritbhai Jalkrushnabhai Thakkar and Ors. (supra), the Apex Court, while allowing the appeal took note of the fact that the plaintiffs have asserted that they were not aware about the execution of the registered sale deed concerning their ancestral property; further the thumb impression on the registered sale deed of theirs was also denied. The Apex Court therefore held that considering the averments in the plaint and the reliefs claimed, which of the Articles from amongst Articles 56, 58, 59, 65 or 110 or any other Article of the Page 26 of 35 Uploaded by SINDHU NAIR(HC01395) on Tue Apr 01 2025 Downloaded on : Sat Apr 05 00:39:53 IST 2025 NEUTRAL CITATION C/FA/3464/2017 JUDGMENT DATED: 12/03/2025 undefined Limitation Act will apply to the facts of the case, has to be considered at the appropriate stage. The Apex Court, pointed out that when there was a specific averment that immediately when the appellants came to know about the registered sale deed, the suit was filed inasmuch as the registered sale deed was executed keeping them in the dark. Relevant paragraph 11, reads thus:
"11. After having cogitated over the averments in the plaint and the reasons recorded by the Trial Court as well as the High Court, we have no manner of doubt that the High Court committed manifest error in reversing the view taken by the Trial Court that the factum of suit being barred by limitation, was a triable issue in the fact situation of the present case. We say so because the appellants (plaintiffs) have asserted that until 2013 they had no knowledge whatsoever about the execution of the registered sale deed concerning their ancestral property. Further, they have denied the thumb impressions on the registered sale deed as belonging to them and have alleged forgery and impersonation. In the context of totality of averments in the plaint and the reliefs claimed, which of the Articles from amongst Articles 56, 58, 59, 65 or 110 or any other Article of the Limitation Act will apply to the facts of the present case, may have to be considered at the appropriate stage."
17. Also in the case of Urvashiben & Anr. vs. Krishnakant Manuprasad Trivedi (supra) the Apex Court has held and observed that it is fairly well settled that so far as the issue of limitation is concerned, it is a mixed question of fact and law. It is true that limitation can be the ground for rejection of plaint in exercise of powers under Order VII Rule 11(d) of the CPC. Equally, it is well settled that for the purpose of deciding application filed under Order VII Rule 11 only averments stated in the plaint alone can be looked into, merits and demerits of the matter and the allegations by the parties cannot be gone into. Article 54 of the Limitation Act, 1963 Page 27 of 35 Uploaded by SINDHU NAIR(HC01395) on Tue Apr 01 2025 Downloaded on : Sat Apr 05 00:39:53 IST 2025 NEUTRAL CITATION C/FA/3464/2017 JUDGMENT DATED: 12/03/2025 undefined prescribes the limitation of three years, for suits for specific performance. The Apex Court considering the provisions of Article 54 held that the limitation provided in Article 54 is in two parts firstly, three years from the date fixed for the performance and if there is no date fixed, when the refusal of performance is known to the plaintiffs. It has been held and observed that the latter part, is a matter for trial to record correctness or otherwise of such allegation made in the plaint. In suits for specific performance falling in the second limb of the Article, period of three years is to be counted from the date when it had come to the notice of the plaintiff that performance is refused by the defendants. Relevant paragraphs 11 and 12 are reproduced for ready reference.
"11. It is fairly well settled that, so far as the issue of limitation is concerned, it is a mixed question of fact and law. It is true that limitation can be the ground for rejection of plaint in exercise of powers under O.VII R.11(d) of the CPC. Equally, it is well settled that for the purpose of deciding application filed under O.VII R.11 only averments stated in the plaint alone can be looked into, merits and demerits of the matter and the allegations by the parties cannot be gone into. Article 54 of the Limitation Act, 1963 prescribes the limitation of three years, for suits for specific performance. The said Article reads as under :
Suits for 3 years The date fixed for the
Specific performance, or, if no such
Performance date is fixed, when the
plaintiff has notice that
performance is refused
12. From a reading of the aforesaid Article, it is clear that when the date is fixed for performance, limitation is three years from such date. If no such date is fixed, the period of three years is to be computed from the date when the plaintiff, has notice of refusal. When rejection of plaint is sought in an application filed under O.VII R.11, same is to be considered from the facts of each case, looking at the averments made in the plaint, for the purpose of adjudicating Page 28 of 35 Uploaded by SINDHU NAIR(HC01395) on Tue Apr 01 2025 Downloaded on : Sat Apr 05 00:39:53 IST 2025 NEUTRAL CITATION C/FA/3464/2017 JUDGMENT DATED: 12/03/2025 undefined such application. As averred in the plaint, it is the case of the plaintiff that even after payment of the entire consideration amount registration of the document was not made and prolonged on some grounds and ultimately when he had visited the site on 25.05.2017 he had come to know that the same land was sold to third parties and appellants have refused performance of contract. In such event, it is a matter for trial to record correctness or otherwise of such allegation made in the plaint. In the suits for specific performance falling in the second limb of the Article, period of three years is to be counted from the date when it had come to the notice of the plaintiff that performance is refused by the defendants. For the purpose of cause of action and limitation when it is pleaded that when he had visited the site on 25.05.2017 he had come to know that the sale was made in favour of third parties and the appellants have refused to execute the Sale Deed in which event same is a case for adjudication after trial but not a case for rejection of plaint under O.VII R.11(d) of CPC."
18. Yet in another decision in the case of Sejal Glass Ltd. vs. Navilan Merchants Pvt. Ltd. (supra), the Apex Court, in paragraphs 6 and 7, has held and observed thus:
"[6] It is settled law that the plaint as a whole alone can be rejected under Order VII Rule 11. In Maqsud Ahmad v. Mathra Datt & Co., A.I.R. 1936 Lahore 1021 at 1022, the High Court held that a note recorded by the trial Court did not amount to a rejection of the plaint as a whole, as contemplated by the CPC, and, therefore, rejected a revision petition in the following terms:-
"There is no provision in the Civil Procedure Code for the rejection of a plaint in part, and the note recorded by the trial Court does not, therefore, amount to the rejection of the plaint as contemplated in the Civil Procedure Code."
[7] Similarly, in Bansi Lal v. Som Parkash, A.I.R. 1952 (P&H) 38 at 39, the High Court held:-
"But the real question which arises in this appeal is whether there can be a partial rejection of the plaint. Mr. Chiranjiva Lal Aggarwala submits that a plaint can either be rejected as a whole or not at all, and he has relied on a statement of the law given in Mulla's Civil Procedure Code at page 612 where it is stated: "This rule (Order 7, Rule 11) does not justify the rejection of any particular Page 29 of 35 Uploaded by SINDHU NAIR(HC01395) on Tue Apr 01 2025 Downloaded on : Sat Apr 05 00:39:53 IST 2025 NEUTRAL CITATION C/FA/3464/2017 JUDGMENT DATED: 12/03/2025 undefined portion of a plaint." In support of this statement the learned author has relied on Raghubans Puri v. Jyotis Swarupa, 1907 29 ILR(All) 325, Appa Rao v. Secretary of State, 54 Mad 416, and Maqsud Ahmad v. Mathra Datt & Co., AIR 1936 Lah 1021. In reply to this argument Mr. Puri has submitted that it is really five suits which had all been combined in one and therefore in this particular case the rejection of a part was nothing more than rejection of three plaints. But the suit was brought on one plaint and not five suits were brought. The law does not change merely because the plaintiff chooses in one suit to combine several causes of action against several defendants which the law allows him. It still remains one plaint and therefore rejection of the plaint must be as a whole and not as to a part. I am therefore of the opinion that the learned Senior Subordinate Judge was in error in upholding the rejection as to a part and setting aside the rejection in regard to the other part. This appeal which I am treating as a petition for revision must therefore be allowed and the rule made absolute, and I order accordingly."
19. Pertinently, the plaintiffs have sought for specific performance of agreement to sell and hence, the recitals of the agreement to sell are also worth referring to, to decide as whether there was any time provided. Discernibly, the agreement to sell records execution of the registered sale deed with the office of the Sub-Registrar. It is further stated that permission has been given for the purpose of sale for whole of the land and hence, registered sale deed has been executed for the whole parcel. The defendant no.6 has indicated that he is a contractor and is engaged in the business of excavating the quarry. The agreement to sell further states that approximately 5 to 6 acres of land would be needed for the said purpose; however, the exact location and measurement cannot be determined. It was also agreed between the parties that the defendant no. 6 would retain the Page 30 of 35 Uploaded by SINDHU NAIR(HC01395) on Tue Apr 01 2025 Downloaded on : Sat Apr 05 00:39:53 IST 2025 NEUTRAL CITATION C/FA/3464/2017 JUDGMENT DATED: 12/03/2025 undefined land required and for remaining land, sale deed would be executed without any consideration. In the agreement to sell, it is specifically recorded that the sale deed would be executed when the party i.e. the plaintiff or the forefather would request to execute and for which there is no time limit provided. It also records that after the land is converted into non-agricultural land, the sale deed would be executed for which also, it was agreed that no time is fixed. From the record, it appears that the NA was sought for in the month of September; only for the land admeasuring 1 acre and 20 gunthas. Remaining land was not converted and the conversion took place only in the year 2014. After the land was converted into NA, the sale deed was executed in favour of the defendant no. 9 and 10 instead in favour of the plaintiff.
20. Clearly, it is the claim of the plaintiffs in the suit that they are in possession of the land in question. For buttressing the aspect of possession, numerous documents have been placed on record. The Court below was of the opinion that documents even prima facie, do not prove that the plaintiffs were ever in possession of the land in question. The learned Judge, was also of the opinion that the bills and receipts contain their name; however, merely paying of the revenue tax is not sufficient to establish any right regarding any property. By relying upon the judgment in the case of Maharaj Shri Manvendrasinhji Ranjitsinhji Jadeja vs. Rajmata Vijaykunverba (supra), it is sought to be argued that in order to find out whether any cause of action is disclosed or not?; it is permissible for the Court to touch the merits of the case.
Page 31 of 35 Uploaded by SINDHU NAIR(HC01395) on Tue Apr 01 2025 Downloaded on : Sat Apr 05 00:39:53 IST 2025NEUTRAL CITATION C/FA/3464/2017 JUDGMENT DATED: 12/03/2025 undefined There is no quarrel to the said proposition; however, the documents, which have been placed on record read in juxtaposition with the averments made in the plaint, there is an assertion of the claim of the plaintiffs that they are in possession of the land in question. When in the plaint, averment as to possession is made, in that case, it would be a matter of evidence and cannot be disregarded as it would be a matter of trial and the issue is to be considered by leading evidence. Also, one of the prayers prayed for in the plaint, is seeking protection of possession qua the land in question. Pertinently, the execution of the agreement to sell, contains a recital which is open-ended. Sale deed, was required to be executed only when the land, is converted into NA. When there was no time limit provided and the NA permission was granted, only in the year 2014 for whole of the land, the issues such as whether the grant of NA permission was within the knowledge of the plaintiffs; whether the NA granted in the year 1978 can be said to be granted for the whole parcel of land; whether the recitals of the Agreement to Sell are restricted etc. would certainly be an issue of mixed question of facts and law for the purpose of deciding the issue of limitation.
21. Clearly, for the suit for specific performance, the limitation provided is three years. The time from which the period begins to run, is in two parts, the former provides for three years if the date is fixed for the performance and the latter, date of notice of refusal to the plaintiffs. Article 54 of the Limitation Act, 1963, reads thus:-
Page 32 of 35 Uploaded by SINDHU NAIR(HC01395) on Tue Apr 01 2025 Downloaded on : Sat Apr 05 00:39:53 IST 2025NEUTRAL CITATION C/FA/3464/2017 JUDGMENT DATED: 12/03/2025 undefined Description of suit Period of Time from which Limitation period begins to run
54. For specific Three years. The date fixed for performance of a the performance, or, contract. if no such date is fixed, when the plaintiff has notice that performance is refused.
22. In the present case, as per the agreement to sell, there appears to be no date fixed for performance and in the prima facie opinion of this Court, would fall in the latter part of the provision which says about three years from the date of the refusal. Also, it is the claim of the plaintiffs that since the year 1968 till the year 2015, they were enjoying the possession and hence, there was no cause available to them to have taken steps. It is only when the registered sale deed was executed in the year 2015 after seeking NA permission, the cause arose to the plaintiffs to file the suit, considering the deemed refusal by the defendant nos.6 to 8 inasmuch as, registered sale deed has been executed in favour of the defendant nos.9 and 10. This issue also deserves to be examined by leading evidence. In this background, the contention of the learned advocate appearing for the defendant nos.6 to 8 that if the main prayer is not capable of being granted, the consequential prayer, cannot be granted, does not deserve to be accepted and is rejected.
23. It is also sought to be argued that even if there is no time limit provided in the agreement to sell; a prudent man would not wait for almost three or four decades and then file a suit and only on this ground, the suit is barred by limitation, Page 33 of 35 Uploaded by SINDHU NAIR(HC01395) on Tue Apr 01 2025 Downloaded on : Sat Apr 05 00:39:53 IST 2025 NEUTRAL CITATION C/FA/3464/2017 JUDGMENT DATED: 12/03/2025 undefined also does not deserve to be accepted considering the fact that the plaintiffs claim that they were all throughout in possession. Also, the non-agricultural permission for the whole of the land in question was granted only in the month of December 2014; it is only thereafter, the plaintiffs could have insisted for the execution of the sale deed. The suit, has been filed in the month of March 2017 and even if one considers the limitation from the date of the NA permission, the suit can be said to be within limitation. Moreover, the sale deed was executed on 23.02.2015. Even if that date is considered, the suit can be said to be within the limitation.
24. Pertinently, the plaintiffs have prayed for specific performance of the agreement to sell dated 10.05.1978. Challenge is also made to the registered agreement to sell dated 10.05.1978, coupled with challenge to the registered sale deed dated 23.02.2015. Assuming without concluding that the challenge to the registered sale deed dated 10.05.1978 is barred by limitation, there were other prayers, namely, for specific performance of the agreement to sell dated 10.05.1978 with an open ended clause, coupled with protection of the possession, substantiated by various documents. Hence, the learned Judge, was not right in observing that none of the documents prove prima facie that the plaintiffs were in the possession of the suit property; however, the learned Judge did agree that the bills and receipts contain the names of the plaintiffs, but the observation that merely paying any revenue tax, is not sufficient to establish any rights is not in right earnest. The Page 34 of 35 Uploaded by SINDHU NAIR(HC01395) on Tue Apr 01 2025 Downloaded on : Sat Apr 05 00:39:53 IST 2025 NEUTRAL CITATION C/FA/3464/2017 JUDGMENT DATED: 12/03/2025 undefined aforesaid aspect, automatically, would go for the trial.
25. Considering the facts of the case and in view of the above referred discussion, the judgments cited by the learned Advocate for the defendants would have no application. Reading the averments made in the plaint in its entirety, it can hardly be said that the suit, was barred by limitation or that it was filed on illusory, false, frivolous and vexations cause of action. This Court, is of the opinion that the learned Judge, has committed an error in exercising the powers under Order VII Rule 11, therefore, the judgment dated 28.04.2017, passed by learned Principal Senior Civil Judge, Bardoli in, Special Civil Suit No.8 of 2017, is hereby quashed and set aside. The suit, is restored to its original file.
26. First Appeal is accordingly, allowed. No order as to costs. Accordingly, Civil Application does not survive and stands disposed of.
27. At this stage, Mr Amit V. Thakkar, learned advocate, submitted that it may be clarified that the learned Judge below, may not be influenced by the observations made in the present judgment. Needless to clarify that the observations may not come in the way of the court below while deciding the suit and it may be decided strictly in accordance with law.
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