Gujarat High Court
Heirs Of Decd Samuel Madhabhai James vs Sunnykumar Dudhabhai Jadav on 28 September, 2022
Author: A. S. Supehia
Bench: A.S. Supehia
C/CRA/269/2021 JUDGMENT DATED: 28/09/2022
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CIVIL REVISION APPLICATION NO.269 of 2021
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE A.S. SUPEHIA Sd/-.
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1 Whether Reporters of Local Papers may be allowed
to see the judgment ? NO
2 To be referred to the Reporter or not ? YES
3 Whether their Lordships wish to see the fair copy
of the judgment ? NO
4 Whether this case involves a substantial question
of law as to the interpretation of the Constitution NO
of India or any order made thereunder ?
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HEIRS OF DECD SAMUEL MADHABHAI JAMES
Versus
SUNNYKUMAR DUDHABHAI JADAV
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Appearance:
for the Applicant(s) No. 1.4
MR APURVA R KAPADIA(5012) for the Applicant(s) No. 1,1.1,1.2,1.3,2,3
MR RASHMIN MAKWANA(3758) for the Opponent(s) No. 1,2,3
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CORAM:HONOURABLE MR. JUSTICE A.S. SUPEHIA
Date : 28/09/2022
ORAL JUDGMENT
(1) The affidavit-in-reply dated 27.09.2022 filed on behalf of the opponents, as tendered by learned advocate Mr.Makwana, is ordered to be taken on record.
(2) RULE. Learned advocate appearing on behalf of the respondents appears and waives service of notice of rule.
Page 1 of 9 Downloaded on : Mon Oct 03 20:27:15 IST 2022C/CRA/269/2021 JUDGMENT DATED: 28/09/2022 (3) The present Civil Revision Application has been filed seeking the following prayers:
"(A) The Hon'ble Court be pleased to admit and allow this petition;
(b) The Hon'ble Court be pleased to quash and set aside the impugned judgment and order dated 05.07.2021 passed by the Additional Civil Judge, Mahemdavad, Dist.Kheda below Exh.43 in Regular Civil Suit No.78 of 2015 and further be pleased to grant the prayers prayed for below Exh.43 in Regular Civil Suit No.78 of 2015 and thereby reject the plaint;
(C) Pending admission, hearing and final disposal of this petition, this Hon'ble Court be pleased to stay and suspend further proceedings of Regular Civil Suit No.78 of 2015 pending before the Court of Additional Civil Judge, Mahemdavad, Dist.Kheda."
(4) The parties shall be referred as per their original status before the court below.
(5) The plaintiffs have instituted Regular Civil Suit No.78 of 2015 before the Court of Principal Senior Civil Judge, Mahemdavad, inter alia, praying for permanent injunction that the defendants may be directed not to dispossess the plaintiffs from the suit property. The defendants filed an application below Exh.43 in Regular Civil Suit No.78 of 2015 under Order VII Rule 11(d) of the Code of Civil Procedure, 1908 (CPC) seeking rejection of plaint on the ground that the suit is barred by law of Page 2 of 9 Downloaded on : Mon Oct 03 20:27:15 IST 2022 C/CRA/269/2021 JUDGMENT DATED: 28/09/2022 limitation, however, the said application below Exh.43 has been rejected by the impugned order dated 05.07.2021 passed by Additional Civil Judge, Mahemdavad. Being aggrieved by the same, the defendants have preferred the present revision application.
(6) It is the case of the plaintiffs that for the suit property bearing Block/Survey No.657, Moje Karoli, Mahemdabad, Dist.Kheda, the applicant Nos.1 and 2 i.e. the original defendant Nos.1 and 2 and one Dhuliben Madhabhai executed an agreement to sell dated 10.08.1982 in favour of the plaintiffs and entire sale consideration of Rs.14,000/- was paid. It is further their case in the plaint that they are cultivating the land and are staying on the same land and since the defendants No.1 and 2 had executed a gift deed in favour of the defendant No.3 and they are threatened by the defendants with dispossession, accordingly with such averments made in the plaint, the suit is instituted seeking permanent injunction against the defendants not to disturb possession of the plaintiffs from the suit property.
Page 3 of 9 Downloaded on : Mon Oct 03 20:27:15 IST 2022C/CRA/269/2021 JUDGMENT DATED: 28/09/2022 (7) Learned advocate Mr.Kapadia appearing for the applicants has submitted that the reliefs prayed for by the plaintiffs in the plaint are misconceived and is a clever drafting since indirectly without challenging or without seeking any directions for execution of the agreement to sell, which was executed in the year 1982, the suit has been instituted seeking permanent injunction after a period of 13 years. It is submitted by him that the plaintiffs are very well aware that if any suit for specific performance is instituted for execution of a sale deed pursuant to the agreement to sell dated 10.08.1982, the same would be barred limitation and hence, by circumventing that relief, the reliefs sought in the present suit seeking permanent injunction, is not maintainable and the plaint deserves to be returned.
(8) Learned advocate Mr.Kapadia has placed reliance on the agreement to sell and has submitted that the same contains a specific date of performance i.e. 30.04.1983 and even if the case of the plaintiffs is believed that the agreement to sell is required to be executed then appropriate Page 4 of 9 Downloaded on : Mon Oct 03 20:27:15 IST 2022 C/CRA/269/2021 JUDGMENT DATED: 28/09/2022 suit seeking such performance should have been instituted within three years from 30.04.1983 as per the date stipulated in such agreement to sell and hence, the court below has fallen in error in rejecting the application filed below Order VII Rule 11 of the CPC. Thus, he has submitted that the impugned order may be set aside.
(9) In response, the learned advocate appearing on behalf of the respondents-original plaintiffs has submitted that the impugned order does not require any interference since the plaintiffs have been enjoying the possession of the suit premises and are cultivating the crops since 1982 and after execution of the agreement to sell, the possession has been handed over to them. It is submitted by him that after appreciating the aforesaid facts, the court below has precisely rejected the application filed by the defendants by the impugned order and the same does not require any interference of this Court.
(10) Heard the learned advocates appearing on behalf of the respective parties.
Page 5 of 9 Downloaded on : Mon Oct 03 20:27:15 IST 2022C/CRA/269/2021 JUDGMENT DATED: 28/09/2022 (11) The facts mentioned hereinabove are not in dispute. It is not disputed by the plaintiffs that the defendants are the real owners of the land in question, for which an agreement to sell was executed on 10.08.1982 in favour of the father of the plaintiffs. The agreement to sell contains a specific clause with regard to the specific performance and the validity of such agreement to sell i.e. 30.04.1983. It is also stated in the plaint that the defendants had obtained full sale consideration from their father. It is well settled proposition of law that while examining an application filed under Order VII Rule 11 of the CPC, the court is required to examine the recitals of the plaint and the documents annexed therewith. The prayers made in the plaint specifically reveal that the suit is only instituted seeking permanent injunction against the defendants restraining them from dispossessing the plaintiffs from the suit property. The plaintiffs have also not disputed execution of the agreement to sell dated 10.08.1982 and its validity till 30.04.1983. The plaint is absolutely silent with respect to any efforts made by their Page 6 of 9 Downloaded on : Mon Oct 03 20:27:15 IST 2022 C/CRA/269/2021 JUDGMENT DATED: 28/09/2022 father during his life time for executing the sale deed. The plaintiffs, though are aware that the entire suit is based on such agreement to sell, have not prayed seeking specific performance of agreement to sell executed on 10.08.1982. The cause of action in the plaint, as stated in Paragraph No.4, reveals that the defendant No.3 has executed a gift deed on 16.06.2015 and accordingly an entry in this regard has been mutated in the revenue record being No.2027 and on 26.07.2015 the defendants, at 10 O'clock in the morning, have abused them when they were present on the suit land. After making such averments in the plaint, the suit seeking permanent injunction has been instituted. Thus, in absence of any averments made in the plaint with regard to any efforts made by their father during his life time seeking declaration for specific performance of execution of sale deed in view of the agreement to sell dated 10.08.1982, the suit seeking permanent injunction by the plaintiffs will not be maintainable since the plaintiffs are very well aware that if any such prayer is sought the same would be barred by limitation in view of the specific date incorporated in the agreement to sell, Page 7 of 9 Downloaded on : Mon Oct 03 20:27:15 IST 2022 C/CRA/269/2021 JUDGMENT DATED: 28/09/2022 which declares its validity till 30.04.1983. Neither the father of the plaintiffs nor they, during the period of 33 years, have made any efforts with regard to the execution of the sale deed pursuant to agreement to sell executed on 10.08.1982 and have directly instituted the suit seeking permanent injunction after a period of 33 years. The prayer seeking permanent injunction will be a consequential relief, after the plaintiffs can successfully established their right, title on the suit property. The defendants are the title owners of the suit land, hence till their title is not disturbed no declaration can be granted in favour of the plaintiffs. Article 58 of the Limitation Act, 1963 provides the limitation of three years to institute any suit seeking any declaration from the date the right to sue accrues. As noted hereinabove, from the cause of action in the plaint, it transpires that the plaintiffs have made a gift deed of the suit land on 16.06.2015, pursuant to which an entry is mutated in the revenue record being No.2027. No declaration is sought for setting aside the same in the plaint.
Page 8 of 9 Downloaded on : Mon Oct 03 20:27:15 IST 2022C/CRA/269/2021 JUDGMENT DATED: 28/09/2022 (12) Under the circumstances and in light of the aforesaid facts, the plaint is barred by provisions of the limitation and hence, the present revision application succeeds. The impugned order dated 05.07.2021 passed by Additional Civil Judge, Mahemdavad, Dist.Kheda below Exh.43 in Regular Civil Suit No.78 of 2015 is required to be quashed and set aside and the same is hereby by quashed.
(13) As a sequel, the plaint - Regular Civil Suit No.78 of 2015, being barred by limitation, is rejected. RULE is absolute accordingly.
Sd/- .
(A. S. SUPEHIA, J)
Bhavesh-[PPS]*
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