Gujarat High Court
Dhaniben D/O Morarbhai Bapubhai Rohit ... vs Rohit Kanubhai Morarbhai on 30 September, 2024
Author: Biren Vaishnav
Bench: Biren Vaishnav
NEUTRAL CITATION
C/FA/1035/2024 CAV JUDGMENT DATED: 30/09/2024
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/FIRST APPEAL NO. 1035 of 2024
With
CIVIL APPLICATION (FOR STAY) NO. 1 of 2024
In R/FIRST APPEAL NO. 1035 of 2024
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE BIREN VAISHNAV
and
HONOURABLE MS. JUSTICE NISHA M. THAKORE
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1 Whether Reporters of Local Papers may be allowed
to see the judgment ?
2 To be referred to the Reporter or not ?
3 Whether their Lordships wish to see the fair copy
of the judgment ?
4 Whether this case involves a substantial question
of law as to the interpretation of the Constitution
of India or any order made thereunder ?
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DHANIBEN D/O MORARBHAI BAPUBHAI ROHIT AND W/O
PARSHOTTAMBHAI CHHOTABHAI ROHIT & ORS.
Versus
ROHIT KANUBHAI MORARBHAI & ORS.
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Appearance:
MR. S.P,MAJMUDAR, ADVOCATE FOR MR ARSHAD SHAIKH(11761) for
the Appellant(s) No.
1,2,2.1,2.2,2.3,2.3.1,2.3.2,2.3.3,3,3.1,3.2,3.3,4,4.1,4.2,4.3
MR V Z BHARDA(12667) for the Appellant(s) No.
1,2,2.1,2.2,2.3,2.3.1,2.3.2,2.3.3,3,3.1,3.2,3.3,4,4.1,4.2,4.3
MR. R.S. SANJANWALA, SENIOR ADVOCATE WITH MR. RUSHABH H
SHAH(7594) for the Defendant(s) No. 7
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CORAM:HONOURABLE MR. JUSTICE BIREN VAISHNAV
and
HONOURABLE MS. JUSTICE NISHA M. THAKORE
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NEUTRAL CITATION
C/FA/1035/2024 CAV JUDGMENT DATED: 30/09/2024
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Date : 30/09/2024
CAV JUDGMENT
(PER : HONOURABLE MR. JUSTICE BIREN VAISHNAV) 1 This First Appeal has been filed by the appellants who were the Original-Plaintiffs of the Special Civil Suit No.343 of 2018. The Suit was filed before the Principal Senior Civil Judge, Vadodara. On applications filed at Exh.57 and 82 by the defendants 1,2 and 7 under Order 7 Rule 11(a) and (d) of the Code of Civil Procedure, the Trial Court vide order dated 10.1.2024 allowed those applications and dismissed the suit of the Original- Plaintiffs.
2 Facts in brief leading to filing of this appeal are as under:
2.1 The case of the plaintiffs in the suit before the Civil Court was pertaining to lands at Village Chikhodra, District: Vadodara, bearing old survey nos.102,105,106,107 and 109, which on consolidation was renumbered as Block No.76 wherein the concerned Page 2 of 49 Uploaded by BIMAL B CHAKRAVARTY(HC01089) on Tue Oct 01 2024 Downloaded on : Tue Oct 01 21:42:55 IST 2024 NEUTRAL CITATION C/FA/1035/2024 CAV JUDGMENT DATED: 30/09/2024 undefined parcels of lands were Block Nos. 76A and 76B admeasuring 0-62-54 and 1-87-83 hector-ra sq.meters. 2.2 The plaintiffs' case was that these lands were ancestral properties of Morarbhai Bapubhai Rohit who was an agricultirist. The family tree indicated that the plaintiffs were daughters of Morarbhai whereas the defendant no.1 Kanubhai Morarbhai Rohit and defendant no.2 since deceased Naranbhai Morarbhai Rohit now represented through his heirs defendants 2/1 to 2/9 were sons of the deceased-father Morarbhai Bapubhai Rohit. It was the case of the plaintiffs that they being daughters, had equal share in the lands in question and Morarbhai in all leaving 6 heirs, each one had 1/6th share in the lands in question. According to the plaintiffs, the sale of the lands in question to the defendants nos.3 to 6 by the defendants 1 and 2 through a sale deed was therefore a fraudulent transaction without the consent and knowledge of the plaintiffs-sisters and therefore the sale transaction be declared null and void. Page 3 of 49 Uploaded by BIMAL B CHAKRAVARTY(HC01089) on Tue Oct 01 2024 Downloaded on : Tue Oct 01 21:42:55 IST 2024
NEUTRAL CITATION C/FA/1035/2024 CAV JUDGMENT DATED: 30/09/2024 undefined 2.3 The plaint proceeded to narrate that, as far as lands being land survey nos.105 and 106 and land being survey nos 102, 107 and 108 on the death of Morarbhai on 3/1/1973 were mutated in the names of the brothers, Naranbhai and Kanubhai vide Revenue Entries 822 and 823 dated 23/11/1974. The plaintiffs were unaware of the names of the brothers being mutated in the revenue records and such mutation entries denying the plaintiffs their share was bad. That the plaintiffs got an entry mutation done on 1/09/2018 vide entry no.2437 by which their names were also entered as co-owners in the lands in question and therefore, the sale deed entered into by the brothers on 23/07/2018 which was registered was a disputed sale transaction which ought to be set aside. The revenue entry no.2433 was entered into the revenue records on 23/7/2018 mutating the names of the purchasers and having obtained a certified copy of the deed on 27/7/2018 it was necessary to approach the Civil Court to challenge the sale deed in question. Page 4 of 49 Uploaded by BIMAL B CHAKRAVARTY(HC01089) on Tue Oct 01 2024 Downloaded on : Tue Oct 01 21:42:55 IST 2024
NEUTRAL CITATION C/FA/1035/2024 CAV JUDGMENT DATED: 30/09/2024 undefined 2.4 The case of the plaintiffs was that the mutation entries 822 and 823 which resulted in recording of the names of the defendant-brothers in the ancestral lands in the year 1974 was an exercise contrary to law as no notices under Section 135-D of the Bombay Land Revenue Code was served on the plaintiffs before carrying out the entries. During the pendency of the suit proceedings, since the defendants 3 to 6 further sold the lands in question by a sale deed dated 9/1//2019 to a third party, the plaint was amended and the subsequent purchaser was added as defendant no.7 and a prayer was accordingly made to set aside the subsequent sale deed dated 09/01/2019.
2.5 In other words, as per the version of the plaintiffs the cause of action to file the suit occurred as a result of the sale transaction to the defendants 3 to 6 vide sale deed dated 23/7/2018 and on the information of the revenue entries mutating the names of the defendants 3 to 6 on 27/7/2018 and after the plaintiffs also getting Page 5 of 49 Uploaded by BIMAL B CHAKRAVARTY(HC01089) on Tue Oct 01 2024 Downloaded on : Tue Oct 01 21:42:55 IST 2024 NEUTRAL CITATION C/FA/1035/2024 CAV JUDGMENT DATED: 30/09/2024 undefined their names added vide entry dated 1/09/2018. Based on these pleadings in short the plaintiffs sought the following reliefs:
a).Declare the sale deed dated 23/7/2018 in favour of the defendants 3 to 6 as illegal,unenforceable and null and void.
b).Declare that the plaintiffs have 1/6th share in the lands in question and the lands therefore be declared to be partitioned in the ratio of 1/6th share amongst the plaintiffs and the defendants and further direct handing over of each of the 1/6th partitioned share to each branch of the family.
c).Direct that since the defendants 3 to 6 have no right, title or interest in the lands in question, they are restrained from transferring the lands in question to any party.
d).Declare the subsequent sale deed dated 9/1/2019 in favour of the defendant 7 as illegal and hence declare that the defendant no.7 has no right,title,interest to hold the properties in question. Page 6 of 49 Uploaded by BIMAL B CHAKRAVARTY(HC01089) on Tue Oct 01 2024 Downloaded on : Tue Oct 01 21:42:55 IST 2024
NEUTRAL CITATION C/FA/1035/2024 CAV JUDGMENT DATED: 30/09/2024 undefined 2.6 The defendant No. 7 and defendants Nos. 1 and 2 filed applications under Order 7 Rule 11 praying that the suit be dismissed. Since both, the defendant no.7 and the defendants 1 and 2 raised similar grounds in their application, it will be apt to refer briefly to the contents of the application filed by the defendant no.7. 2.6.1. According to the defendant no.7, the lands were originally in the names of the grandfather of the plaintiffs and the defendants 1 and 2 namely Bapubhai Dalabhai whose name was entered vide entry numbers 148 and 149 as far RS Nos.105 and 106 was concerned and entry numbers 185, 186 and 265 as far as RS Nos. 102, 108 and 109 was concerned. On the death of their grandfather, the names of Naranbhai and Kanubhai were entered as revenue entries 822 and 823 on 23/11/1974. On 28.7.2014 vide revenue entry number 2119 names of defendants 2.1 to 2.9 were added. On the sale of land to defendants 3 to 7, revenue entry number 2433 dated Page 7 of 49 Uploaded by BIMAL B CHAKRAVARTY(HC01089) on Tue Oct 01 2024 Downloaded on : Tue Oct 01 21:42:55 IST 2024 NEUTRAL CITATION C/FA/1035/2024 CAV JUDGMENT DATED: 30/09/2024 undefined 23/7/2018 was entered into. The land was then sold to defendant no.7 on 10/1/2019.
2.6.2. According to the defendant no.7, the case put up by the plaintiffs that the mutation entries on 23/11/1974 without informing the branch of the sisters was bad, was a version which ought not to be believed. It is the case of the defendant no.7 that when he obtained the records of the revenue entries on 19/5/2022, reading the records including the pedhinama, it is apparent that the plaintiffs-sisters had by a release deed relinquished their share in favour of the defendants 1 and 2 brothers. The revenue entries were made after the statements of these plaintiffs were recorded by the Talati and a Panchnama was made where the plaintiffs in writing had foregone and relinquished their shares to the lands in question. The entries were mutated after the procedure under Section 135-D was carried out.
2.6.3. The applicants of Order 7 Rule 11 application therefore pleaded that the case of the plaintiffs that the Page 8 of 49 Uploaded by BIMAL B CHAKRAVARTY(HC01089) on Tue Oct 01 2024 Downloaded on : Tue Oct 01 21:42:55 IST 2024 NEUTRAL CITATION C/FA/1035/2024 CAV JUDGMENT DATED: 30/09/2024 undefined revenue entries 822 and 823 in the year 1974 were made without following the procedure was apparently a misleading statement and though the plaintiffs were aware of this mutation entries made in 1974, no challenge has been made to the entries from 1974 to 2018 for a period of 44 years. The suit ought to have been filed within 3 years from 1974 whereas it is filed in 2018. That the case of the plaintiffs that they had their names mutated vide entries dated 1/09/2018 is also not believable as even prior to such entry being registered, 40 days before it, vide a sale deed of 23/7/2018 revenue entries showing the names of defendants 3 to 6 were already made.
2.6.4. The applications were heard by the learned Principal Senior Civil Judge and by the impugned order, the applications were entertained and the suit of the plaintiffs was dismissed. Perusal of the order of the learned judge under challenge would indicate that the reasons, to put it briefly, to entertain the applications Page 9 of 49 Uploaded by BIMAL B CHAKRAVARTY(HC01089) on Tue Oct 01 2024 Downloaded on : Tue Oct 01 21:42:55 IST 2024 NEUTRAL CITATION C/FA/1035/2024 CAV JUDGMENT DATED: 30/09/2024 undefined under Order 7 Rule 11 and to dismiss the plaint are as under:
a). After referring to certain undisputed facts such as that the lands in question were of the initial ownership of Bapubhai Dayalbhai and thereafter vested in the names of the defendants 1 and 2.1 to 2.9, vide revenue entries number 822 and 823 in the year 1974, the defendants 1 and 2 sold the lands in question on 23/7/2018 in favour of the defendants 3 to 6. Pending the suit, the defendants 3 to 6 sold the lands on 10/1/2019 to the defendant no.7. It was also undisputed that when the plaintiffs on 1/09/2018 tried to mutate their names, the request was rejected by the revenue authorities.
b). The Trial Court observed that the plaintiffs have prayed for a declaration that they be declared as owners of the lands in question and their partitioned share be handed over to them. The Trial Court observed that based on the entries No.822 and 823 produced by the plaintiffs, it was evident that the lands were initially in the name of their grandfather Bapubhai Dayalbhai and on his death Page 10 of 49 Uploaded by BIMAL B CHAKRAVARTY(HC01089) on Tue Oct 01 2024 Downloaded on : Tue Oct 01 21:42:55 IST 2024 NEUTRAL CITATION C/FA/1035/2024 CAV JUDGMENT DATED: 30/09/2024 undefined on 28/4/1973 and on the death of Morabhai Bapubhai, father of the plaintiffs and defendants No. 1 and 2, the names of the defendants No.1 and 2 were entered in the revenue records on the basis of a release deed of the plaintiffs. The Trial Court observed that if it was the case of the plaintiffs that these revenue entries in the year 1974 were bad, no legal challenge was made to these revenue entries before a competent revenue Court. This entry after being certified in 1974, was again on consolidation of holdings into blocks 76 as 76A and 76B, were mutated in the revenue records as entry no.1167 on 28/2/1989 and revenue entry no.1350 was entered on 27/6/1997 as a result of acquisition of a certain plot of land for the purposes of Narmada Canal. Thereafter, on the death of defendant no.2 Narsinhbhai Morarbhai on 31/5/2013, the names of the heirs of Narsinhbhai were entered into the revenue records vide entry no.2119 on 28/5/2014. On 17/10/2016, a fresh revenue entry was made for change of surname from Khalpa to Rohit.
Therefore, in the opinion of the Trial Court, even after Page 11 of 49 Uploaded by BIMAL B CHAKRAVARTY(HC01089) on Tue Oct 01 2024 Downloaded on : Tue Oct 01 21:42:55 IST 2024 NEUTRAL CITATION C/FA/1035/2024 CAV JUDGMENT DATED: 30/09/2024 undefined 1974 revenue entries were periodically mutated in 1989, 1997, 2014 and 2016. The stand of the plaintiffs that they were made aware of the change in revenue entry on 2017 on the event of the sale deed is a pleading which a clever drafting ploy as despite multiple revision in revenue entries from 1974 to 2016, the plaintiffs have sat quietly without challenging these entries before the revenue authorities. The Trial Court found that for a declaration of title, the suit had to be brought within 3 years as per Article 58 of the Limitation Act and as per Article 110 a suit when the right of recovery of possession would be 12 years and admittedly on both counts the suit was time barred. It is not believable that the plaintiffs had not checked the revenue records of the lands in question for a period of 44 years.
c). The Trial Court further observed that it was not even pleaded in the plaint by the plaintiffs that it was a case of fraud and even if it was so pleaded, no specific pleading as to when such fraud came to light was pleaded in the Page 12 of 49 Uploaded by BIMAL B CHAKRAVARTY(HC01089) on Tue Oct 01 2024 Downloaded on : Tue Oct 01 21:42:55 IST 2024 NEUTRAL CITATION C/FA/1035/2024 CAV JUDGMENT DATED: 30/09/2024 undefined plaint. Even if the case that a revenue entry was mutated on 01/09/2018 is to be belied at the face value, what is evident that it is after the sale deed dated 23/7/2018 and the recording of the revenue entry on 23/7/2018 in the names of the defendants 3 to 6 pursuant to the sale in their favour and therefore even an assertion of ownership is made on the basis of a disputed revenue entry dated 01/09/2018 even then on that day the plaintiffs could not assert such a claim as a prior sale deed of 23/7/2018 was a registered sale deed based on which a revenue entry was made in favour the purchasers defendants 3 to 6 on 23/7/2018.
d) The Trial Court also found that the plaintiffs had not produced the entire revenue records but only those revenue entries from 1974 to 2016 which helped them. It was only when at Exh.58 and the revenue records what was found is that the revenue authorities had undertaken the exercise of mutating revenue entries 822 and 823 after service of notices under Section 135-D of the Code Page 13 of 49 Uploaded by BIMAL B CHAKRAVARTY(HC01089) on Tue Oct 01 2024 Downloaded on : Tue Oct 01 21:42:55 IST 2024 NEUTRAL CITATION C/FA/1035/2024 CAV JUDGMENT DATED: 30/09/2024 undefined and after recording of the release deeds. When confronted with these documents, the plaintiffs subsequently pleaded a case of fraud and based their claim on production of a report of a handwriting expert suggesting that there was a variance in the signature of Dhaniben. Obvously that a release deed was signed by the plaintiffs was a case not even pleaded in the plaint initially and only when confronted did the plaintiffs came out of a stand of fraud. This, in the opinion of the Trial Court was therefore a case of suppression of facts in the plaint and the plaintiffs therefore not approached the court with clean hands and therefore the plaint also deserved to be rejected.
e). On appreciation of all facts, the Trial Court therefore observed that by clever drafting and suppression in not bringing out material facts the plaintiffs had tried to create a cause of action which otherwise was barred by law and the plaint therefore deserved to be rejected. Page 14 of 49 Uploaded by BIMAL B CHAKRAVARTY(HC01089) on Tue Oct 01 2024 Downloaded on : Tue Oct 01 21:42:55 IST 2024
NEUTRAL CITATION C/FA/1035/2024 CAV JUDGMENT DATED: 30/09/2024 undefined 3 Mr.S.P.Majmudar learned counsel for the appellants has made the following submissions:
3.1 That in the impugned order dated 10.01.2024 passed by the learned 12th Additional Sr.Civil Judge & Additional Chief Judicial Magistrate First Class, Vadodara, below Exh. 57, 82 and 1 in Special Civil Suit No. 343 of 2018, the Hon'ble Court below has considered the documents of the defendants while deciding an application under Order VII, Rule XI of the Code of Civil Procedure, 1908. It is further submitted that the Court below has categorically considered the documents in paragraph 9.3 of the impugned order wherein documents below Exh.58 of the defendants have been considered and based on that, the impugned order has been passed rejecting the plaint under Order VII, Rule XI of the Code of Civil Procedure, 1908. Further it is submitted that as per the settled legal propositions of law, the documents of the defendants can never be considered while considering an application under Order VII, Rule XI of the Code of Civil Procedure, 1908 as laid down by the Hon'ble Supreme Court in the Page 15 of 49 Uploaded by BIMAL B CHAKRAVARTY(HC01089) on Tue Oct 01 2024 Downloaded on : Tue Oct 01 21:42:55 IST 2024 NEUTRAL CITATION C/FA/1035/2024 CAV JUDGMENT DATED: 30/09/2024 undefined decision in the case of Keshav Sood Vs. Kirti Pradeep Sood & Ors., reported in 2023 Livelaw (SC) 799. 3.2 That the Court below while passing the impugned order has grossly erred in holding that the plaintiffs had suppressed material facts by not producing the relevant record of Entry Nos. 822 and 823. In the submission of Mr.Majmudar, learned counsel, both the aforesaid entries, namely, Entry Nos. 822 and 823 were part of the list of documents produced by the plaintiffs himself which is clear from perusal of the list of documents produced by the plaintiffs before this Hon'ble Court. Thus, in the submission of Mr.Majmudar, the finding of the Court below that the entire record of Entry Nos. 822 and 823 is not produced is erroneous as the entries have been produced and the entries clearly mentions the relevant dates which are required to be disclosed at the time of filing of the plaint. It is submitted that the entire record of the said entries can even be looked into a later stage while giving oral evidence before the Court below. Hence, Page 16 of 49 Uploaded by BIMAL B CHAKRAVARTY(HC01089) on Tue Oct 01 2024 Downloaded on : Tue Oct 01 21:42:55 IST 2024 NEUTRAL CITATION C/FA/1035/2024 CAV JUDGMENT DATED: 30/09/2024 undefined if the plaintiffs have already produced the necessary entries which reflects the germane facts, then the Court below has clearly erred in holding that since entire record of the said entries is not produced, the plaintiffs are guilty of suppression of facts which in the submission of Mr.Majmudar, learned counsel, is erroneous, untenable and unsustainable in law.
3.3 Mr.Majmudar, learned Counsel, would submit that the Court below has based the impugned order relying on the record of the revenue entries, namely, Revenue Entry No. 822 and 823. With regard to Entry No. 822, Mr.Majmudar, would further submit that for the plaintiffs, there is absolutely no alleged relinquishment because they have not given any statements nor any such statement is produced on record even by the defendants.
With regard to Entry No.823, it is the case of the plaintiffs that signature of the plaintiff No.1 in the said statement given for the Entry No.823, is forged. For this purpose, the plaintiffs have already produced Page 17 of 49 Uploaded by BIMAL B CHAKRAVARTY(HC01089) on Tue Oct 01 2024 Downloaded on : Tue Oct 01 21:42:55 IST 2024 NEUTRAL CITATION C/FA/1035/2024 CAV JUDGMENT DATED: 30/09/2024 undefined Handwriting Expert's opinion, perusal of which reveals that the signature of the plaintiff No.1 in the alleged relinquishment statement is forged.
3.4 Mr.Majmudar, learned counsel, would submit that the from the statement produced by the defendant in the documents produced for Revenue Entry No. 822, it becomes evidently clear that the statement recorded by the Talati-cum-Mantri was not at all signed by the appellants herein but was signed by Dahiben, sister of the father of the appellants herein. Mr.Majmudar, learned counsel, would further submit that the plaintiffs have not relinquished their rights in the suit property for which the Revenue Entry No. 822 came to be mutated. Thus, since the appellants herein have not relinquished any rights in the suit property, the co-owners could not have sold the suit property as is held by the Hon'ble Supreme Court that the co-owners cannot sell the entire joint property in absence of any partition having taken place between the owners.
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NEUTRAL CITATION C/FA/1035/2024 CAV JUDGMENT DATED: 30/09/2024 undefined 3.5 Mr.Majmudar, learned Counsel, would submit that the finding of the Court below after considering the revenue entries that the plaintiffs have no right, title or interest in the suit land in question is completely erroneous as it is a settled legal proposition of law that the revenue entries are only for fiscal purposes and such revenue entries do not take away or confer any right, title or interest. In support of his submission, Mr.Majmudar, learned counsel, would rely on a decision of the Hon'ble Supreme Court renderred in the case of Jitendra Singh Vs. State of Madhya Pradesh., reported in 2021 (0) AIJEL-SC 67695.
3.6 Mr.Majmudar, learned counsel, would submit that it is the specific case of the appellants that there has been no relinquishment of their share by unregistered document. Mr.Majmudar, would rely on a decision of the Hon'ble Supreme Court in the case of Yellapu Uma Maheshwari vs. Buddha Jagadheeswararao, reported in 2015 (0) AIJEL-SC 57186, wherein it has been held Page 19 of 49 Uploaded by BIMAL B CHAKRAVARTY(HC01089) on Tue Oct 01 2024 Downloaded on : Tue Oct 01 21:42:55 IST 2024 NEUTRAL CITATION C/FA/1035/2024 CAV JUDGMENT DATED: 30/09/2024 undefined that relinquishment has to be by a registered document, while in the facts of the present case, there is no registered document produced by the defendants to show that the plaintiffs have relinquished their share from the suit land in question. In the submission of Mr.Majmudar, it is the case of the appellants herein that no partition has ever taken place, and therefore, the present suit is required to be proceeded further so that respective shares of the parties can be decided.
3.7 Mr.Majmudar, learned Counsel, would press into service Sec.6(5) of the Hindu Succession Act, and submit that the appellants being daughters would have rights over the land in question. Mr.Majmudar, would further submit that since there has been no registered Partition Deed or no Decree of the Court with regard to partition, the shares of the daughters in the ancestral properties continue and the daughters are entitled to enforce their share. Mr.Majmudar, learned counsel, would further submit that the Court below has erred in holding that the Page 20 of 49 Uploaded by BIMAL B CHAKRAVARTY(HC01089) on Tue Oct 01 2024 Downloaded on : Tue Oct 01 21:42:55 IST 2024 NEUTRAL CITATION C/FA/1035/2024 CAV JUDGMENT DATED: 30/09/2024 undefined suit of the appellants is time barred as under Article 110 of the Limitation Act, the suit for partition can be filed within 12 years from the date of ouster, which in the present case, was only on 23.07.2018 when defendant Nos. 1 and 2 executed registered Sale Deed in favour of defendant Nos. 3 to 6. Mr.Majmudar, learned counsel,would submit that 23.07.2018 is the actual date of ouster when the brothers for the first time sold the suit property in question to the defendants Nos. 3 to 6 and that considering the said date, the suit of the present plaintiffs is clearly within the statutory period of limitation.
3.8 Mr.Majmudar, learned counsel, would rely on a decision of the Hon'ble Supreme Court in the case of Geetha D/o. Late Krishna & Ors Vs. Nanjundaswamy & Ors., reported in 2023 (0) AIJEL SC 72723, to contend that the suit cannot be rejected in part. Mr.Majmudar, would submit that the plaintiffs in the present case had already filed suit seeking share in the Page 21 of 49 Uploaded by BIMAL B CHAKRAVARTY(HC01089) on Tue Oct 01 2024 Downloaded on : Tue Oct 01 21:42:55 IST 2024 NEUTRAL CITATION C/FA/1035/2024 CAV JUDGMENT DATED: 30/09/2024 undefined property in question and such reliefs are not merely consequential but substantive relief, and therefore, the prayers are maintainable and the suit therefore can never be rejected in part. Mr.Majmudar, learned counsel, would rely on a decision of the Hon'ble Supreme Court in the case of Soumitra Kumar Sen Vs. Shyamal Kumar Sen., reported in 2018 (5) SCC 644, and on a decision of the Madras High Court in the case of P.R.Palanisamy Vs. P. Gopalkrishnan., reported in 2013 Lawsuit (Mad) 20, to contend that assuming without admitting that there is suppression on the part of the plaintiffs, even then the said can never be a ground for rejection of plaint under Order VII, Rule XI of the Code of Civil Procedure, 1908. It is submitted by Mr.Majmudar, learned counsel, that in the present case, as such there is absolutely no suppression on the part of the appellants, but even if it is assumed, then also the same is not a ground for rejection of plaint. Mr.Majmudar, learned counsel would rely on the decision of the Hon'ble Supreme Court in the case of Page 22 of 49 Uploaded by BIMAL B CHAKRAVARTY(HC01089) on Tue Oct 01 2024 Downloaded on : Tue Oct 01 21:42:55 IST 2024 NEUTRAL CITATION C/FA/1035/2024 CAV JUDGMENT DATED: 30/09/2024 undefined G.Nagaraj Vs. B.P.Mruthunjayanna., reported in 2023 (0) AIJEL-SC 71024.
3.9 Mr.Majmudar, learned Counsel, would rely on a decision of the Hon'ble Supreme Court in the case of Chhotanben & Anr Vs. Kiritbhai Jalkrushnabhai Thakkar & Ors., reported in (2018) 6 SCC 422, and contend that the plaint cannot be rejected by exercising powers under Order VII, Rule XI as it has been clearly held that in a partition suit, the issue of limitation etc., will be issues of mixed question of fact and law which have to be considered at the time of trial. Mr.Majmudar, would further submit that defendant No.7 is not a bonafide purchaser of the property as he has purchased the property from defendant Nos. 3 to 6 after the suit was instituted and notice of Lis Pendens was already given. In the submission of Mr.Majmudar, learned counsel, the argument of the learned advocate for respondent No.7 that revenue entries are not for only fiscal purpose and that it can decide title considering the provisions of the Page 23 of 49 Uploaded by BIMAL B CHAKRAVARTY(HC01089) on Tue Oct 01 2024 Downloaded on : Tue Oct 01 21:42:55 IST 2024 NEUTRAL CITATION C/FA/1035/2024 CAV JUDGMENT DATED: 30/09/2024 undefined Gujarat Land Revenue Code, is contrary to the settled legal position of law. With regard to suppression in the plaint as arguned by the advocate for respondent No.7, Mr.Majmudar, would submit that the appellants have already produced Entry Nos. 822 and 823 which contains all the necessary details and thus there is no suppression of material fact. To the submission of learned advocte Mr.Sanjanwala, Senior Counsel, for respondent No.7, that transfer in favour of defendant Nos. 3 to 6 was before the suit and it is vexations, Mr.Majmudar, learned counsel for the appellants, would submit that immediately on property being transferred to defendant Nos. 3 to 6, the suit has been filed, and thus the suit cannot be termed as vexatious as the plaintiffs are only seeking their share in the suit property in question as the plaintiffs have undivided share in the suit property in question and are entitled to seek such share.
3.10 Mr.Majmudar, learned counsel, to the submission of Mr.Sanjanwala, learned advocate for respondent No.7, Page 24 of 49 Uploaded by BIMAL B CHAKRAVARTY(HC01089) on Tue Oct 01 2024 Downloaded on : Tue Oct 01 21:42:55 IST 2024 NEUTRAL CITATION C/FA/1035/2024 CAV JUDGMENT DATED: 30/09/2024 undefined that the prayer for partition is a consequential prayer, would submit that the prayer for partition is a substantive prayer and considering all the prayers in the plaint together as well as the pleaded cause of action, it cannot be said that the plaint is required to be rejected under any provisions of Order VII Rule XI of the Code of Civil Procedure, 1908. To the judgement relied upon by Mr.Sanjanwala, learned advocate for respondent No.7, in the case of Jusab Bachu Miyana Vs. Umar Bachubhai Miyana & Ors., reported in MANU/GJ/1139/2017, Mr.Majmudar, learned counsel for the appellants, would submit that the instant case at hand does not pertain to Mohammedan Law and that when the alleged relinquishment statement is found to be forged as is supported by the judgement of the Forensic Expert, the judgement relied upon by the respondent would not be applicable to the case at hand. In view of the law laid down by the Hon'ble Supreme Court in the case of Yellapu Uma (supra), wherein it is held that the document for relinquishment requires registration, Page 25 of 49 Uploaded by BIMAL B CHAKRAVARTY(HC01089) on Tue Oct 01 2024 Downloaded on : Tue Oct 01 21:42:55 IST 2024 NEUTRAL CITATION C/FA/1035/2024 CAV JUDGMENT DATED: 30/09/2024 undefined Mr.Majmudar, learned counsel, would submit that the judgement relied upon by the learned advocate for respondent No.7 is not applicable to the case at hand. 3.11 To the submission of Mr.Sanjanwala, learned advocate for respondent No.7, that the plaint can be rejected on ground of suppression, for which reliance is placed on a decision of this Court in the case of Khimjibhai Hirabhai Baraiya Vs. Suyash Infracon & Anr., rendered in First Appeal No. 4756 of 2022, Mr.Majmudar, learned counsel, would submit that there is no suppression by the appellants herein and even assuming without admitting that there is suppression on the part of the plaintiffs- appellants herein, even then suppression can never be ground for rejection of plaint under Order VII, Rule XI of the Code of Civil Procedure, 1908. He would place reliance on a decision of the Hon'ble Supreme Court in the case of Soumitra Kumar Sen Vs. Shyamal Kumar Sen, reported in 2018 (5) Page 26 of 49 Uploaded by BIMAL B CHAKRAVARTY(HC01089) on Tue Oct 01 2024 Downloaded on : Tue Oct 01 21:42:55 IST 2024 NEUTRAL CITATION C/FA/1035/2024 CAV JUDGMENT DATED: 30/09/2024 undefined SCC 644, and submit that as held by the Apex Court, the plaint cannot be rejected on the ground of suppression. 4 Mr.R.S.Sanjanwala learned Senior Advocate appearing with Mr.Rusabh Shah for the Respondent No.7 made the following submissions:-
4.1 That the predecessor of plaintiffs till the year 2018 never claimed any right in respect of the suit property, only after the suit property was sold in the year 2018, suddenly from 27.07.2018 they became active in the matter. Initially, the plaintiffs got an entry mutated in the revenue record being mutation entry no. 2437 entering their names as legal heirs of Morarbhai Bapubhai and Bapubhai Dayalbhai which however was not certified and the said order of rejection has attained finality. 4.2 On 17.11.2018, suit came to be filed inter alia claiming that the plaintiffs had no knowledge of events that transpired before 27.07.2018 and only on 27.07.2018 they became aware about execution of sale deed when Page 27 of 49 Uploaded by BIMAL B CHAKRAVARTY(HC01089) on Tue Oct 01 2024 Downloaded on : Tue Oct 01 21:42:55 IST 2024 NEUTRAL CITATION C/FA/1035/2024 CAV JUDGMENT DATED: 30/09/2024 undefined they obtained copy of sale deed from the revenue authorities and took legal action. The plaintiffs claim to have become aware about mutation entry no. 822 and 823 only in the year 2018. The knowledge of entry no. 822 and 823 before filing of suit is not in dispute. The entry refers to release of rights by the predecessors of the plaintiffs, however by resorting to clever drafting, suppression of material facts, in paragraph 9 of the plaint they claim that they have not released/relinquished their rights. This clearly is a false statement considering contents of the mutation entry no. 822 and 823 and the statements of the predecessors of the plaintiffs recorded while certifying mutation entry no. 822 and 823. The plaint therefore suppresses documents, makes false statements and concocts cause of action conveniently to question a registered sale deed executed by Defendant No. 1 and 2 in favour of Defendant No. 3 to 6. 4.3 Mr.Sanjanwala, learned Senior Counsel, would further submit that it is a settled principle of law that ideally a plaintiff who comes to the court must disclose all Page 28 of 49 Uploaded by BIMAL B CHAKRAVARTY(HC01089) on Tue Oct 01 2024 Downloaded on : Tue Oct 01 21:42:55 IST 2024 NEUTRAL CITATION C/FA/1035/2024 CAV JUDGMENT DATED: 30/09/2024 undefined facts. The plaintiff in the suit seeks declaration as to their right, title and interest in the suit properties by relying upon the provisions of the Hindu Successions Act without disclosing the fact that way back in the year 1974, they had relinquished their rights in the suit properties. The plaint refers to mutation entry no. 822 and 823 posted in the revenue record way back in the year 1974, however it is the case of plaintiffs in the plaint that they came to know about mutation of such entry pursuant to execution of registered sale deed on 23.07.2018 by Defendant No.1 and 2 in favour of Defendant No. 3 to 6. In the submission of Mr.Sanjanwala, learned Senior Counsel, the plaintiff in the plaint conveniently supresses the fact about no objection/consent given by the plaintiffs before the Talati and their statements being recorded while mutation of entry no. 822 and 823 for releasing their right in the subject property in favour of Defendant No.1 and 2. Said fact is even recorded in the mutation entry no. 822 and 823.
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NEUTRAL CITATION C/FA/1035/2024 CAV JUDGMENT DATED: 30/09/2024 undefined 4.4 Mr.Sanjanwala, learned Senior Counsel, would further submit that the plaintiff intentionally has only produced mutation entry no.822 and 823 along with the plaint and has suppressed other material documents forming part of mutation entry no. 822 and 823 such as their statements before Talati, notice issued under section 135D with acknowledgement receipt and pedigree. The plaintiff ought to have submitted the entire record of mutation entry no. 822 and 823. The plaintiff has suppressed material facts in the plaint about having knowledge of mutation entry no. 822 and 823, which is evident in view of the following:
i Issuance of notice under section 135D to the plaintiffs and their acknowledgment thereof;
ii Statements recorded before talati releasing their rights from the subject property;
iii Since the year 1974, several mutation entries came to be posted in the revenue record;
iv Even prior to filing of the captioned suit, plaintiff ties to mutate their names in the Page 30 of 49 Uploaded by BIMAL B CHAKRAVARTY(HC01089) on Tue Oct 01 2024 Downloaded on : Tue Oct 01 21:42:55 IST 2024 NEUTRAL CITATION C/FA/1035/2024 CAV JUDGMENT DATED: 30/09/2024 undefined revenue record, vide mutation entry no. 2437, fails.
4.5 Mr.Sanjanwala, learned Senior Counsel, would further submit that it is a settled proposition of law that it is open for the Learned Trial Court to dismiss the suit in exercise of powers under O.7 R.11 when there is material suppression of facts. Moreover, the averments and documents that ought to have been produced by the plaintiff and if deliberately not produced can very well be considered by the Learned Trial Court while exercising powers under Order VII Rule XI. In order to substantiate the above proposition, reliance is placed on the following judgments:
i Order dated 18.07.2024 passed by the Division Bench of this Hon'ble Court in First Appeal No. 4756 of 2022 in the matter of Khimjibhai Hirabhai Baraiya v/s Suyash Infracon & Anr.
ii 2023 (3) GLH 441: In the case of Jaman Shamji Fadadu v/s Sadik Mahmad Sidik, confirmed by the Hon'ble Supreme Page 31 of 49 Uploaded by BIMAL B CHAKRAVARTY(HC01089) on Tue Oct 01 2024 Downloaded on : Tue Oct 01 21:42:55 IST 2024 NEUTRAL CITATION C/FA/1035/2024 CAV JUDGMENT DATED: 30/09/2024 undefined Court vide its order dated 22.09.2023 passed in Special Leave Petition (Civil) Diary no. 31005/2023.
4.6 Mr.Sanjanwala, learned Senior Counsel, would further submit that bare reading of the plaint makes it abundantly evident that the suit is barred by limitation. The plaint refers to mutation entry no.822 and 823 posted way back in the 1974 in the revenue record. The said entries records release of rights in the suit property by the predecessors of plaintiffs in favour of Defendant No.1 and 2. Therefore, after relinquishing rights in the suit properties in the year 1974, the plaintiffs, after a lapse of 45 years, by virtue of the captioned suit is seeking declaration as to their right, title and interest in the suit properties. Despite having released their rights in the suit property in the year 1974, the predecessors of the plaintffs and thereafter the plaintiffs have chosen not to initiate any action till the year 2018. It is upon execution of sale deed in the year 2018 in favour of Defendant No. 3 to 6 and when the prices of suit land has exponentially Page 32 of 49 Uploaded by BIMAL B CHAKRAVARTY(HC01089) on Tue Oct 01 2024 Downloaded on : Tue Oct 01 21:42:55 IST 2024 NEUTRAL CITATION C/FA/1035/2024 CAV JUDGMENT DATED: 30/09/2024 undefined shoot up, that the plaintiffs choses to wake up from slumber after lapse of nearly 45 years and files the captioned suit seeking declaration that they have right, title and interest in the suit property. 4.7 Mr.Sanjanwala, learned Senior Counsel, would submit that it is not the case of plaintiff in the plaint that some fraud was perpetuated while posting revenue entry no. 822 and 823 and that the statements given by them before Talati is forged or concocted. There is no explanation worth a name in the plaint as to how this relinquishment is not binding or that the same is illegal and also to the fact that the plaintiffs do not recognise mutation entries mutated in the revenue record over these years. It is further submitted by Mr.Sanjanwala, learned Senior Counsel, that the plaintiffs have tried to clandestinely maneuverer the real purport of plaint by clever drafting, by misleading statements and by suppressing the basic facts and has created the illusion of a cause of action and therefore the same should be nip it in the bud in the first hearing.
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NEUTRAL CITATION C/FA/1035/2024 CAV JUDGMENT DATED: 30/09/2024 undefined 4.8 Argument that mutation entries are of no relevance and are only for fiscal purpose, in the submission of Mr.Sanjanwala, learned Senior Counsel, is not a correct argument and is misconceived in view of induction of Chapter 10A in the Bombay Land Revenue Code. Mr. Sanjanwala, learned Senior Counsel, submits that the said argument will have to be seen in background of the provisions from section 135A onwards which clearly indicates that revenue is only one aspect, however record of right always will indicate who is the owner occupier, mortgagee etc. Further section 135C, requires the legal heirs to report in case they acquire any right including acquisition by succession in the property and therefore the plaintiffs should have reported in the year 1974 itself if they claim to have acquired any right in the property. Therefore, reliance placed by the appellant on the decision rendered by this Hon'ble Court in the case of Kantibhai Ishwarbhai Patel (supra) reported in 2005 3 GLR 2110 will not be applicable to the facts of the present case. Therefore, it is submitted that what Page 34 of 49 Uploaded by BIMAL B CHAKRAVARTY(HC01089) on Tue Oct 01 2024 Downloaded on : Tue Oct 01 21:42:55 IST 2024 NEUTRAL CITATION C/FA/1035/2024 CAV JUDGMENT DATED: 30/09/2024 undefined happens before the Revenue Authorities is determinative of the rights of the parties and based on that mutation entries are posted. Therefore, the revenue entries in itself provide a trigger. In view thereof, the argument advanced by the appellant that the cause of action for the appellant to file the captioned suit had arisen only upon execution of sale deed in the year 2018 is devoid of merits. In view of the above the reliance placed by appellant in the decision rendered by the Hon'ble Apex Court in the case of Daya Singh & Anr Vs. Gurudev Singh., reported in (2010) 2 SCC 194 would not be applicable to the facts of the present case.
4.9 Mr.Sanjanwala, learned Senior Counsel, would submit that the argument that there is a prayer for partition and therefore the plaint cannot be rejected in part is not tenable in view of the fact that in the present case, the prayer for partition is a consequential prayer followed by a prayer for declaration of their having any right, title or interest in the suit property. It is submitted that in the event, the main prayer seeking declaration is Page 35 of 49 Uploaded by BIMAL B CHAKRAVARTY(HC01089) on Tue Oct 01 2024 Downloaded on : Tue Oct 01 21:42:55 IST 2024 NEUTRAL CITATION C/FA/1035/2024 CAV JUDGMENT DATED: 30/09/2024 undefined barred by limitation and is not available to the plaintiff, there is no question of partition of the suit property, as partition can only be at an instance of a person who is owner and therefore the suit must go in its entirety. Therefore, reliance placed by the appellant in the decision rendered by the Hon'ble Apex Court in the case of Geetha reported in 2023 (0) AIR(SC) 5516 would not be applicable to the facts of the present case. Argument that relinquishment of right in a property has to be compulsorily registered in the submission of Mr.Sanjanwala, learned Senior Counsel, is also misconceived in light of the facts of the present case. It is submitted that in the present case, predecessors of plaintiffs had relinquished their rights in the suit property by giving consent and recording their statements before the Talati. It is further submitted that in case of Joint Hindu families, this is an accepted practice and such oral relinquishment by virtue of recording statements in the revenue record does not require registration under section 17 of the Registration Act. Reliance is placed on Page 36 of 49 Uploaded by BIMAL B CHAKRAVARTY(HC01089) on Tue Oct 01 2024 Downloaded on : Tue Oct 01 21:42:55 IST 2024 NEUTRAL CITATION C/FA/1035/2024 CAV JUDGMENT DATED: 30/09/2024 undefined the judgment rendered by Division Bench this Hon'ble Court in the case of Jusab Bachu Miyana passed in First Appeal No. 410 of 2014 in identical set of facts. Therefore, reliance placed by appellant in the decision rendered by the Hon'ble Apex Court in the decision of Yellapu Uma Maheswari reported in (2015) 16 SCC 787 and decision rendered by this Hon'ble Court in the case of Aminabai W/o Osman Bahcu reported in 2010 3 GCD 1989 would not be applicable to the facts of the present case.
4.10 Mr.Sanjanwala, learned Senior Counsel, would further submit that it is clearly evident from the bare reading of the plaint itself that the plaintiff has by way of clever drafting and deliberately concealing material facts and documents tried to resurrect a cause of action that is illusionary and hopelessly time barred. It is a fit case wherein the plaint should be nipped in the bud and is rightly rejected by the Learned Court below. In view thereof, this appeal is required to be dismissed with exemplary costs.
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NEUTRAL CITATION C/FA/1035/2024 CAV JUDGMENT DATED: 30/09/2024 undefined ANALYSIS.
5 Reading of the Plaint would indicate that the dispute
pertains to Suit Property: Old Survey
nos.102,105,106,107 and 109 at Chikhodra District
Vadodara. The land after amalgamation is given block no.76 which was further sub-divided into 76A and 76B. If the submissions of the learned advocate Mr.Majmudar were to be summarised as below:
5.1 The plaint could not have been rejected after considering the documents of the defendants. It is a settled legal proposition of law that while considering an application under Order VII Rule XI of the Code of Civil Procedure, 1908, the documents of the defendants can never be looked into.
5.2 The other submission that was a subset of this was that there was no suppression of facts and the Trial Court failed to appreciate that the plaintiffs had produced all Page 38 of 49 Uploaded by BIMAL B CHAKRAVARTY(HC01089) on Tue Oct 01 2024 Downloaded on : Tue Oct 01 21:42:55 IST 2024 NEUTRAL CITATION C/FA/1035/2024 CAV JUDGMENT DATED: 30/09/2024 undefined the relevant revenue records pertaining to Revenue Entry 822 and 823.
5.3 The Revenue Entries were even otherwise relevant for fiscal purposes and such revenue entries do not confer any right, title or interest.
5.4 That the relinquishment deed was forged. Even otherwise, in absence of the relinquishment being through a registered document, the same was no relinquishment in the eye of law.
5.5 The suit was not time barred as under Article 110 the period of limitation was 12 years from the date of ouster and the ouster being in the year 2018 the suit was within time.
5.6 Even otherwise, an alternative substantial relief was for partition of properties and therefore the plaint cannot be rejected in part.
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NEUTRAL CITATION C/FA/1035/2024 CAV JUDGMENT DATED: 30/09/2024 undefined 6 The perusal of the order of the Trial Court would indicate that the Trial Court found that the mutation entries 822 and 823 were recorded in the year 1974 and the suit was filed 45 years after such entries were recorded and if the claim of the plaintiffs was that by such mutation their right was alienated then there was delay in approaching the Court. The Trial Court then on examination of the documents placed by the defendant observed that the documents produced by the defendant indicated that the plaintiffs had already signed a release deed or a deed of relinquishment and merely because their names were entered in the revenue records again on 1.09.2018 gave no fresh lease of life to challenge the deed on the ground that the signatures were forged. The challenge then was clearly an afterthought after having been exposed to the charge of suppression of these documents.
6.1 The plaint when read as a whole in its entirety as it is, does not talk about the foundational facts based on Page 40 of 49 Uploaded by BIMAL B CHAKRAVARTY(HC01089) on Tue Oct 01 2024 Downloaded on : Tue Oct 01 21:42:55 IST 2024 NEUTRAL CITATION C/FA/1035/2024 CAV JUDGMENT DATED: 30/09/2024 undefined which the Revenue entries 822 and 823 were recorded in the revenue records. The case of the plaintiffs is that such entries were made without their knowledge and when they came to know of it in 2018 did they approach the Court. They have produced the Revenue entries 822 and 823 with the paperbook which were part of the plaint. It is their case that the names of the defendant brothers were recorded in the revenue records for which the plaintiff sisters had not received any notice under Section 135-D of the Bombay Land Revenue Code. It is at this instance that the defendant no.7 produced its own records which suggested that notices under Section 135D were in fact issued and received by the plaintiff-sisters. A consent letter and statement was made before the Talati- cum-Mantri releasing their rights in the lands in question. Both, statements for lands of Revenue Survey No.822 and 823 are produced before the Trial Court and also are part of the paper book before us. Once this fact was out to the notice of the plaintiff did they then denied having signed such a release deed and the afterthought of producing Page 41 of 49 Uploaded by BIMAL B CHAKRAVARTY(HC01089) on Tue Oct 01 2024 Downloaded on : Tue Oct 01 21:42:55 IST 2024 NEUTRAL CITATION C/FA/1035/2024 CAV JUDGMENT DATED: 30/09/2024 undefined the handwriting expert's opinion to suggest that the signatures weren't matching.
6.2 The basic foundational facts on which the plaint was based was that it was only in the year 2018 when the sale deed was made that the sisters came to know that this deed was based on revenue entries 822 and 823 made on 27.11.1974 which was done without their knowledge and without the notices under Section 135D of the Bombay Land Revenue Code. Moreover, when the order of the Trial Court is read it also records subsequent entries when on 28.2.1989 when entry no.1167 was mutated in the revenue record recording amalgamation of the survey numbers. Entry No.1350 was recorded on 27.6.1997 recording acquisition of some land for the Narmada Canal. On the death of Narsinhbhai, names of the legal heirs of Narsinhbhai were mutated on 28.5.2014. Similarly, on 17.10.2016 Entry No.2291 was made giving effect to the change in surname from Khalpa to Rohit prior to the entry of 23.07.2018 of the sale deed. Page 42 of 49 Uploaded by BIMAL B CHAKRAVARTY(HC01089) on Tue Oct 01 2024 Downloaded on : Tue Oct 01 21:42:55 IST 2024
NEUTRAL CITATION C/FA/1035/2024 CAV JUDGMENT DATED: 30/09/2024 undefined 6.3 Reliance placed on an order of the Hon'ble Supreme Court in the case of Keshav Sood (supra) wherein in Para 5 the Supreme Court has observed that while rejecting a plaint the Court cannot go into the documents produced by the defendants. The observations were made by the Hon'ble Supreme Court in context of a plea by the defendant-applicant of Order VII Rule XI on the issue of res-judicata by referring to certain documents. Here, in the facts of the present case when the Trial Court found that the foundational facts themselves were not correctly stated, the Court when found that it was a case of suppression of facts the Court had to consider the documents of the defendant on the issue of suppression made by the plaintiff of the very documents which should have been in his custody. The contention of the Counsel for the appellants cannot be accepted. When the case of the plaintiff was based on a false claim on suppression of facts which were material to the issue, the Trial Court committed no error in relying on the documents produced by the defendants. The documents produced by the Page 43 of 49 Uploaded by BIMAL B CHAKRAVARTY(HC01089) on Tue Oct 01 2024 Downloaded on : Tue Oct 01 21:42:55 IST 2024 NEUTRAL CITATION C/FA/1035/2024 CAV JUDGMENT DATED: 30/09/2024 undefined defendants indicated that notices under Section 135D were issued and acknowledgements were produced. This belied a statement in the plaint that no notices under Section 135-D were received. The case was further exposed to suppression when signed release deeds were placed on record which struck at the plaintiffs' root to further their case for partition of properties. Only when these documents were produced did the plaintiffs come forward then to change track to suggest that the signatures on the release deed was forged. 6.4 Even Mr Majmudar,learned counsel, now contending that the release deed not being a registered document is trying to latch on to a last straw to swim against the tide to come out of the fact that there was a clear case of suppression before the Trial Court and the Plaint was nothing but a case of clever drafting and suppression. Even reliance placed on the provisions of the Hindu Succession Act is a submission that stands on loose ground in light of the facts that indicate that the sisters themselves had foregone their rights in the suit Page 44 of 49 Uploaded by BIMAL B CHAKRAVARTY(HC01089) on Tue Oct 01 2024 Downloaded on : Tue Oct 01 21:42:55 IST 2024 NEUTRAL CITATION C/FA/1035/2024 CAV JUDGMENT DATED: 30/09/2024 undefined properties by signing a release deed in the year 1974 and statements were recorded before the Talati-cum-Mantri. The alternative submission of learned Counsel Mr Majmudar was that even otherwise revenue entries are for fiscal purposes and cannot be looked into for the purposes of title may now be considered. 6.5 What the learned Counsel for the appellant completely overlooks is that the plaint and the case to challenge the sale deed is founded on the basis that their ouster was based on revenue entries 822 and 823 which according to them was the first ouster. In fact, even in the course of arguments though the plaint is attempted to be brought within the period of limitation when the foundation to challenge the sale deed and consequential relief of partition is seeded by these entries, the argument to suggest that revenue entries are only for fiscal purposes is an argument and an attempt to blow hot and cold or approbate or reprobate. Even when faced with the fact of having signed a release deed that deed is Page 45 of 49 Uploaded by BIMAL B CHAKRAVARTY(HC01089) on Tue Oct 01 2024 Downloaded on : Tue Oct 01 21:42:55 IST 2024 NEUTRAL CITATION C/FA/1035/2024 CAV JUDGMENT DATED: 30/09/2024 undefined now sought to be disowned on the ground of it being a forged one. So indirectly the basis again leads to a basis of revenue entries.
6.6 We would agree with the submissions of the Learned Counsel for the Respondent No.7 who has taken us through the provisions of the Bombay Land Revenue Code particularly Sections 135A and 135C which require the legal heirs to report their case in case of their acquiring any right including acquisition by succession which they ought to have reported in the year 1974 itself had they desired to have a share in the properties. Even the argument that the release deed is not binding is an unregistered document when argued as defence is a clear afterthought and infact, makes a case of suppression apparent. Even if Mr Majmudar's argument that there was no suppression and even if there was on a demurrer to cite a decision in the case of Soumitra Kumar Sen (supra) cannot be accepted. It is not a case where based on a written statement that the plaint is rejected. It is not Page 46 of 49 Uploaded by BIMAL B CHAKRAVARTY(HC01089) on Tue Oct 01 2024 Downloaded on : Tue Oct 01 21:42:55 IST 2024 NEUTRAL CITATION C/FA/1035/2024 CAV JUDGMENT DATED: 30/09/2024 undefined a case that a clever drafted plaint has not given details may ultimately lead to a dismissal of a suit which facts are ultimately found to be correct.
6.7 The case of the sisters in the suit is very much based on the revenue entries being made and deprivation of their share in the properties as a result of the entries in question. To then suggest that the fact that they had given release deeds and relinquished their share which was a fact which could be tested in the trial is clearly misconceived. The fact of giving statements before the Talati-cum-Mantri and giving of a release statement and then defending this by getting a handwriting expert's opinion to deny it was an obvious case of trying ward off a fact by pleading which was an afterthought which infact would indicate that though being aware of such a existence of a release deed the fact was not disclosed which was very vital to the plaintiffs' right to sue and not one which could await trial.
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NEUTRAL CITATION C/FA/1035/2024 CAV JUDGMENT DATED: 30/09/2024 undefined 6.8 We would agree to the submission of the learned counsel for the respondent no.7 that the revenue entries themselves provide a trigger and therefore the sole base of the suit was the mutation in the revenue entries and its fall out on the purported right to a share based on partition and therefore the sale deed being declared as illegal. That also brings us to the contention that a plaint cannot be rejected in part. The plaint when read as a whole is based, at the cost of reiteration, on the fact that the plaintiff sisters plead that their share to the properties was ignored when the mutation was done in 1974 in recording entries 822 and 823, and that there was a release deed in 1974. Essentially, the prayer of partition was a consequential prayer after seeking a declaration for setting aside the sale deed and when the Trial Court found that the very prayer of setting aside a sale deed and the basis of the revenue entries 822 and 823 being barred by limitation no prayer consequential to it could have been granted. Therefore, the judgements even cited at the Bar by the learned counsel for the Page 48 of 49 Uploaded by BIMAL B CHAKRAVARTY(HC01089) on Tue Oct 01 2024 Downloaded on : Tue Oct 01 21:42:55 IST 2024 NEUTRAL CITATION C/FA/1035/2024 CAV JUDGMENT DATED: 30/09/2024 undefined parties on the issue of revenue entries being for fiscal purposes that the defendant's documents cannot be looked into and that a relinquishment has to be by a registered document and that the plaint cannot be rejected in part are decisions that in the facts and for the reasons that we have given above will not be applicable in the present case.
7 For the aforesaid reasons, we do not deem it fit that the appeal even deserves to be admitted. We, accordingly, dismiss the appeal with no orders as to cost.
The civil application is also disposed of, accordingly.
(BIREN VAISHNAV, J) (NISHA M. THAKORE,J) BIMAL Page 49 of 49 Uploaded by BIMAL B CHAKRAVARTY(HC01089) on Tue Oct 01 2024 Downloaded on : Tue Oct 01 21:42:55 IST 2024