Bombay High Court
Shri Ambadas Damodar Umekar vs Hirubai Wd/O Shriram Sadar And Another on 14 December, 2018
Author: Rohit B. Deo
Bench: Rohit B. Deo
1 sa52.17.J.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR
SECOND APPEAL NO.52 OF 2017
Shri Ambadas Damodar Umekar,
Aged 77 years, Occ: Agriculturist,
R/o Wanarsi (Sukli), Amravati,
Tq. & Dist. Amravati. ....... APPELLANT
...V E R S U S...
1] Hirabai wd/o Shriram Sadar,
Aged 72 yrs., Occu: Household work,
R/o Wanarsi (Sukli), Amravati,
Tq. & Dist. Amravati.
2] Gram Panchayat, Wanarsi
through its Secretary
R/o Wanarsi (Sukli),
Tq. & Dist. Amravati. ....... RESPONDENTS
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Shri V.S.Giramkar, Advocate for Appellant.
Mrs. S.P. Deshpande, Advocate for Respondent 1.
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CORAM: ROHIT B. DEO, J.
DATE: 14th DECEMBER, 2018.
ORAL JUDGMENT
1] Heard Shri V.S. Giramkar, the learned Counsel for the appellant and Mrs. S.P. Deshpande, the learned Counsel for respondent 1.
2] This appeal is preferred by the defendant in suit for ::: Uploaded on - 19/12/2018 ::: Downloaded on - 27/12/2018 07:47:59 ::: 2 sa52.17.J.odt declaration and injunction who succeeded in persuading the Trial Court to reject the plaint under Order VII, Rule 11 of the Code of Civil Procedure, which rejection of plaint is reversed by the first Appellate Court.
3] The appeal is heard on the following substantial questions of law:
1] Whether the suit filed by the plaintiff for declaration that the sale deed dated 16.01.1965 is null and void alleging the same as loan transaction and alleged repayment of the same without mentioning the date of repayment and without claiming reconveyance deed from defendant no.1 after repayment of alleged loan, is tenable ?
2] Whether date of effecting mutation entry can be cause of action for the claim in present suit ?
3] Whether the suit for declaration and injunction as filed by the plaintiff is without limitation ?
4] Few relevant facts may be noted:
Respondent - plaintiff instituted Regular Civil Suit ::: Uploaded on - 19/12/2018 ::: Downloaded on - 27/12/2018 07:47:59 ::: 3 sa52.17.J.odt 236/2009 seeking declaration and injunction, qua the suit property which is a small piece of land with temporary construction situated at Mouza in village Wanarsi. The declaration sought is that the sale-deed dated 16.01.1965 executed in favour of defendant 1 - Ambadas Umekar is nominal and null and void. The consequential declaration sought is that the mutation entry effected by defendant 2 - Gram Panchayat, Wanarsi does not confer any right in favour of defendant 1. Permanent injunction is sought to restrain the defendant 1 from disturbing the possession of the plaintiff.
5] The plaintiff claims to be the widow of Shriram Sardar who inherited the suit property from his father Bajirao Sardar. Shriram expired on 05.05.2007. The plaintiff claims to be in continuous peaceful possession of the suit property. The plaintiff avers that in August, 2007 she came to know that in the year 1965 her husband had taken hand loan of Rs.400/- for marriage from defendant 1 and executed nominal sale-deed dated 16.01.1965 as security. It is not in dispute that the deceased husband of the plaintiff was working with defendant 1 as Body Guard. The plaintiff claims that during his life time her husband refunded the hand loan from time to time. The plaintiff further ::: Uploaded on - 19/12/2018 ::: Downloaded on - 27/12/2018 07:47:59 ::: 4 sa52.17.J.odt claims that defendant 1 despite receipt of the loan amount neither issued the discharge receipt nor did he reconvey the suit property to the husband of the plaintiff although he assumed to do so. The plaintiff avers that her husband, during his life time, regularly asked the defendant 1 to reconvey the suit property.
The plaintiff claims that the mutation entry was taken behind her back and she gathered knowledge of the mutation entry on 03.08.2007. The plaintiff further claims that an attempt was made to dispossess her on the basis of the mutation entry. 6] The defendant 1 preferred an application under Order VII, Rule 11(a) and (d) of the Code of Civil Procedure for rejection of plaint. The substratum of the said application is that even if the plaint averments are holistically read the suit claim is barred by limitation. This submission found favour with the Trial Court which rejected the plaint by order dated 23.09.2010. The Trial Court noticed that the plaintiff has not disclosed the date on which the loan amount is allegedly repaid by her late husband. The Trial Court found that if the entire plaint is read, while the plaintiff is seeking declaration that the sale-deed dated 16.01.1965 is nominal document and is claiming that the entire loan amount was repaid by her late husband, the plaintiff has ::: Uploaded on - 19/12/2018 ::: Downloaded on - 27/12/2018 07:47:59 ::: 5 sa52.17.J.odt neither disclosed the date on which the loan was repaid nor the date on which her late husband obtained a promise from the defendant to reconvey the property. The Trial Court further noted that the plaintiff has not claimed the relief of reconveyance. The Trial Court rejected the plaint recording two fold findings, that no cause of action is disclosed and the suit is barred by limitation.
7] The judgment of reversal proceeds to hold that whether the defendant discloses cause of action and whether the suit is barred by limitation are mixed question of law and facts. 8] Shri Giramkar, the learned counsel for the appellant would invite my attention to the decision of the Hon'ble Apex Court in N.V. Srinivasa Murthy & ors. v. Mariyamma (dead) by proposed L.Rs. & ors. reported in 2005(5) ALL MR (S.C.) 838 to buttress the submission that if the plaint is read as a whole the suit is clearly barred by limitation. The factual matrix in the said decision may now be noted. The plaintiff contended that their father borrowed Rs.2000/- from the predecessor-in-title of the defendant and by way of security executed sale-deed dated 05.05.1953 with a contemporaneous oral agreement that on ::: Uploaded on - 19/12/2018 ::: Downloaded on - 27/12/2018 07:47:59 ::: 6 sa52.17.J.odt return of the borrowed sum with interest payable thereon at 6% per annum the reconveyance deed shall be executed. The plaintiffs contended that since the transaction was a loan transaction the father of the plaintiffs and thereafter the plaintiffs continued to be in possession of the suit lands. The plaintiffs then contended that the entire payment of loan was made and receipt obtained on 25.03.1987. The plaintiffs then referred to revenue proceedings concerning mutation and pleaded that the cause of action arose when the Assistant Commissioner by order dated 28.04.1994 confirmed the mutation entry. The suit was filed on 26.08.1996. In this factual background the Hon'ble Apex Court observed thus:
10. As seen from the pleadings it is clear that foundation of the suit is that the registered sale deed dated 5.5.1953 was, in fact, only a loan transaction executed to secure the amount borrowed by the plaintiff's predecessor. The amount borrowed was alleged to have been fully paid back on 25.3.1987 and in acknowledgment thereof a formal receipt was obtained. At the same time, there was an alleged oral agreement by the defendants to reconvey the property to the plaintiff by registered deed.
11. On the above averments, relief of declaring the registered sale deed dated 5.5.1953 to be a loan transaction and second relief of Specific Performance of oral agreement of re-conveyance of the property by registered instrument should and ought to have been claimed in the suit. A suit merely for declaration that the plaintiffs are absolute owners of ::: Uploaded on - 19/12/2018 ::: Downloaded on - 27/12/2018 07:47:59 ::: 7 sa52.17.J.odt the suit lands could not have been claimed without seeking declaration that the registered sale deed dated 5.5.1953 was a loan transaction and not a real sale. The cause of action for seeking such a declaration and for obtaining re-conveyance deed according to the plaintiff's own averments in paragraph 9 of the plaint, arose on 25.3.1987 when the plaintiffs claimed to have paid back the entire loan amount and obtained a promise from the defendants to reconvey the property. Reckoning the cause of action from 25.3.1987, the suit filed on 26.8.1996, was hopelessly barred by time.
12. The averments in paragraph 12 of the plaint concerning the mutation proceedings before the revenue authorities did not furnish any fresh cause of action for the suit and they appear to have been made as a camouflage to get over the bar of limitation. The dispute of mutation in the revenue court between the parties arose only on the basis of registered sale deed dated 5.5.1953. The orders passed by Tehsildar/Assistant Commissioner did not furnish any independent or fresh cause of action to seek declaration of the sale deed of 5.5.53 to be merely a loan transaction. The foundation of suit does not seem to be the adverse orders passed by revenue courts or authorities in mutation proceedings. The foundation of suit is clearly the registered sale deed of 1953 which is alleged to be a loan transaction and the alleged oral agreement of re-conveyance of the property on return of borrowed amount.
13. In paragraph 11 of the plaint, the plaintiffs have stated that they had earlier instituted original suit No.557 of 1990 seeking permanent injunction against defendants and the said suit was pending when the present suit was filed. Whatever relief the petitioners desired to claim from the civil court on the basis of averment with regard to the registered sale deed of 1953 could and ought to have been claimed in original civil suit No.557 of 1990 which was pending at that time. The second suit claiming ::: Uploaded on - 19/12/2018 ::: Downloaded on - 27/12/2018 07:47:59 ::: 8 sa52.17.J.odt indirectly relief of declaration and injunction is apparently barred by Order 2, Rule 2 of the Code of Civil Procedure.
14. After examining the pleadings of the plaint as discussed above, we are clearly of the opinion that by clever drafting of the plaint the civil suit which is hopelessly barred for seeking avoidance of registered sale deed of 5.5.1953, has been instituted by taking recourse to orders passed in mutation proceedings by the Revenue Courts.
9] The facts in the present case are broadly similar. The foundation of the suit is that the registered sale-deed dated 16.01.1965 is a nominal document executed as security for loan availed by the deceased husband of the plaintiff. The mutation entry in the year 2007 cannot give rise to an independent cause of action and the suit plaint is a classic example of clever drafting to get over the bar of limitation. The plaint does not disclose when the loan was repaid or when the late husband of the plaintiff obtained assurance from the defendant that the reconveyance deed shall be executed. Even if the plaint averments are accepted at face value, the limitation was triggered at least when the late husband of the plaintiff repaid the loan and was assured that reconveyance deed will be executed. Since the limitation started running during the life time of the deceased husband of the plaintiff, it was incumbent for the plaintiff to disclose the relevant ::: Uploaded on - 19/12/2018 ::: Downloaded on - 27/12/2018 07:47:59 ::: 9 sa52.17.J.odt dates. Moreover, the plaintiff has not sought relief of reconveyance.
10] Smt. S.P. Deshpande, the learned counsel for the defendant has relied on the decisions of the Hon'ble Supreme Court in P.V. Guru Raj Reddy represented by GPA Laxmi Narayan Reddy and another v. P. Neeradha Reddy and others reported in (2015) 8 SCC 331, Foreshore Cooperative Housing Society Limited v. Praveen D. Desai (dead) through legal representatives and others reported in (2015) 6 SCC 412 and Roop Lal Sathi v. Nachhattar Singh Gill reported in (1982) 3 SCC 487. In P.V. Guru Raj Reddy the Hon'ble Apex Court has held that the stand of the defendants in the written statement or in the application for rejection of plaint is wholly immaterial and plaint can be rejected only if the averments do not disclose a cause of action or on reading thereof the suit appears to be barred under any law. Foreshore Cooperative Housing Society Limited considered the ambit and scope of section 9-A of the C.P.C., which was then in force in the State of Maharashtra. The specific question which fell for consideration was whether the court shall be guided by the provisions of Order XIV, Rule 2 of the C.P.C. or section 9-A in the matter of deciding the objection concerning the ::: Uploaded on - 19/12/2018 ::: Downloaded on - 27/12/2018 07:47:59 ::: 10 sa52.17.J.odt bar of limitation. In Roop Lal Sathi the Hon'ble Apex Court holds that part of the plaint cannot be rejected and the plaint as a whole must be rejected if no cause of action is disclosed. The decisions cited do not take the case of the plaintiff any further. The question which falls for consideration in the present case is whether a holistic reading of the plaint shows that the suit claim is barred by limitation. The issue is not whether limitation is a mixed question of fact or law. The suit claim is clearly founded on the sale-deed dated 16.01.1965 and the averment that the loan was repaid and reconveyance assured. It is the case of the plaintiff herself that her husband executed the nominal document as security and repaid the entire loan during his life time and was assured reconveyance. As observed supra, since the limitation was triggered during the life time of the deceased husband of the plaintiff, it was necessary for the plaintiff to state the relevant dates. This disclosure is not made nor is relief reconveyance sought. On the other hand, the plaintiff avers that the mutation would furnish fresh cause of action, which cannot be countenanced.
11] On holistic reading of the plaint it will have to be held that the suit was time barred and the Trial Court was right in rejecting the suit plaint. It would further have to be held that the ::: Uploaded on - 19/12/2018 ::: Downloaded on - 27/12/2018 07:47:59 ::: 11 sa52.17.J.odt mutation entry will not furnish an independent cause of action. The substantial questions of law are answered accordingly. 12] The appeal is without substance and is rejected.
JUDGE NSN ::: Uploaded on - 19/12/2018 ::: Downloaded on - 27/12/2018 07:47:59 :::