Gujarat High Court
Manibhai Asharam Shah vs Ranchodbhai Cheetabhai ... on 9 October, 2013
Author: Abhilasha Kumari
Bench: Abhilasha Kumari
C/CRA/182/2013 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
CIVIL REVISION APPLICATION NO. 182 of 2013
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MANIBHAI ASHARAM SHAH....Applicant(s)
Versus
RANCHODBHAI CHEETABHAI PATEL(DEC.)THROUGH LEGAL HERIS &
6....Opponent(s)
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Appearance:
MR MIHIR J THAKORE, LEARNED SENIOR ADVOCATE WITH MR SP
MAJMUDAR, ADVOCATE for the Applicant(s) No. 1
MR DHARMENDRA PARIKH, ADVOCATE for the Opponent(s) No. 1 - 1.1.2 , 2
-4
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CORAM: HONOURABLE SMT. JUSTICE ABHILASHA
KUMARI
Date : 09/10/2013
ORAL ORDER
1. Heard Mr. Mihir J. Thakore, learned Senior Advocate with Mr. S.P. Majmudar, learned advocate for the applicant and Mr. Dharmendra Parikh, learned advocate for respondents Nos.1 to 4.
2. It is submitted that the applicant had flied an application for rejection of the plaint under Order 7 Rule 11(d) of the Code of Civil Procedure, 1908, ('the Code' for short). That the averments in the application disclose that the suit is barred by law of Page 1 of 6 C/CRA/182/2013 ORDER limitation. The challenge in the suit is to two Registered Sale Deeds entered into by respondents Nos.5 to 7 (original defendants Nos.1 to 3) in favour of the applicant (original defendant No.4). Though it has been averred in the application that respondents Nos.1 to 4 were not aware of the execution of the said Sale Deeds, as they were married and were living in their respective matrimonial houses, however, as per the law laid down by this Court and the Supreme Court, the registration of a document tantamounts to public notice. The suit has been filed in the year 2011 whereas the Registered Sale deeds have been executed in the year 1985, which fact is evident from the bare averments made in the plaint.
2.1 It is further submitted that the suit is also barred by the Proviso to Section 6(1) of the Hindu Succession Act, 1956, as the rights given to a daughter of a coparcerner in respect of coparcenary property, cannot be enforced before 20.12.2004. The proviso saves all transactions entered into, in respect of coparcenary property, before the said date. In the present case, the Sale Deeds have been executed in the year 1985 when this provision of law had not Page 2 of 6 C/CRA/182/2013 ORDER been enacted, therefore, the suit is barred by law. 2.2 It is further contended that the main ground for rejection of the plaint by the impugned order is that, according to the Trial Court, the question of limitation is a mixed question of fact and law and the plaint cannot be rejected on the ground of limitation. That if this observation is accepted, it would mean that limitation is not a substantive law, which is incorrect. The facts of the present case are very clear as respondents Nos.1 to 4 have challenged the Sale Deeds executed in the year 1985, by instituting a Suit in the year 2011. The Registration of the Sale Deeds amount to public notice, hence, respondents Nos.1 to 4 cannot take a plea that they were not aware of the execution of the Sale Deeds. It is further submitted that an entry has been mutated in the Revenue Record being Entry No.2221, dated 06.08.1985, pursuant to the execution of the Sale Deeds in respect of the suit property. Therefore, the petitioners cannot plead ignorance in this regard. The Revenue Record is a Government Record and has not been challenged by respondents Nos.1 to 4.
2.3 It is submitted that the search conducted by the Page 3 of 6 C/CRA/182/2013 ORDER plaintiffs, as averred in the plaint, is through an advocate. When the Sale Deeds have been registered and an entry posted in the Revenue Record, the question of the date of knowledge would not be relevant. 2.4 In support of the above submissions, reliance has been placed upon the following judgments:
(1) Becharbhai Zaverbhai Patel & Anr. V. Jashbhai Shivabhai Patel & Ors. reported in 2013(1) GLR 398 (2) Kanjibhai Bhagwanjibhai Patel V. Nanduben Shamjibhai Sorathiya Through P.O.A., Dharmesh P. Trivedi & Ors. reported in 2013(1) GLR 51 (3) Judgment dated 27.09.2012 passed in Civil Revision Application No.219 of 2009
3. Mr. Dharmendra Parikh, learned advocate respondents Nos.1 to 4 (Caveators) has submitted that it is an established position of law that while considering an application under Order 7 Rule 11 of the Code, the plaint, as a whole, must be considered Page 4 of 6 C/CRA/182/2013 ORDER and not random sentences. The memorandum of the plaint discloses the addresses of the plaintiffs, who are residing in different villages in their matrimonial homes, about 50 to 60 kilometers away from the disputed lands. The marriages of respondents Nos.1 to 4 took place between 1953 to 1980, that is, before the Sale Deeds were executed, in the year 1985. They, therefore, had no knowledge of what transpired in their parental house with regard to the suit land. It is only after a search was conducted through an advocate that they came to know about the sale transactions.
3.1 The learned advocate for respondents Nos.1 to 4 has relied upon the following judgments:
(1) Popat And Kotecha Property Versus State Bank Of India Staff Association reported in 2005(7) SCC 510 (2) C. Natrajan Versus Ashim Bai reported in 2007 (14) SCC 183 (3) Kamala Versus K.T. Eshwara Sa reported in 2008(12) SCC 661 Page 5 of 6 C/CRA/182/2013 ORDER (4) Anil Kumar Versus Vijayalakshmi M.V. reported in AIR 2007 KER 123
4. Having heard learned counsel for the respective parties and upon perusal of the material on record, the following order is passed:
Issue Rule, returnable on 02.12.2013. Interim relief in terms of paragraph 8(B) is granted, till the final decision of the Revision Application.
(SMT. ABHILASHA KUMARI, J.) piyush Page 6 of 6