Gujarat High Court
Haridas Atmaram Desani vs Legal Heirs Of Decd. Vishnudas Atmaram ... on 23 September, 2022
Author: A. S. Supehia
Bench: A.S. Supehia
C/CRA/141/2016 CAV JUDGMENT DATED: 23/09/2022
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CIVIL REVISION APPLICATION NO.141 of 2016
FOR APPROVAL AND SIGNATURE: sd/-
HONOURABLE MR.JUSTICE A.S. SUPEHIA
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1 Whether Reporters of Local Papers may be allowed to NO
see the judgment ?
2 To be referred to the Reporter or not ? YES
3 Whether their Lordships wish to see the fair copy of the NO
judgment ?
4 Whether this case involves a substantial question of law NO
as to the interpretation of the Constitution of India or
any order made thereunder ?
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HARIDAS ATMARAM DESANI
Versus
LEGAL HEIRS OF DECD. VISHNUDAS ATMARAM DESANI
MADHURAM VISHNUDAS DESANI & 4 other(s)
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Appearance:
MR SP MAJMUDAR(3456) for the Applicant(s) No. 1
MR.KRUTARTH K PANDYA(7092) for the Applicant(s) No. 1
MS MEGHA JANI(1028) for the Opponent(s) No. 3,4
TANAYA G SHAH(8430) for the Opponent(s) No. 1,2,5
====================================================
CORAM:HONOURABLE MR. JUSTICE A.S. SUPEHIA
Date :23/09/2022
CAV JUDGMENT
1. The present revision application has been filed by the original defendant
- applicant herein under Section 115 of the Code of Civil Procedure, 1908, (for short, "the CPC") inter alia challenging the order dated 29.02.2016 passed by the Principal Civil Jugde, Jasdan, below application Exh.12 in Regular Civil Suit No.181 of 2015. The applicant is the original defendant in the suit filed application below Exh.12 under the provisions of Order VII rule 11(a)(b)(d) of the CPC for rejection of the aforesaid plaint instituted by the respondents - original plaintiffs.
Page 1 of 15 Downloaded on : Fri Sep 23 21:44:19 IST 2022C/CRA/141/2016 CAV JUDGMENT DATED: 23/09/2022 FACTS :-
2. It is the case of the defendant-applicant that the plaintiffs-respondents have instituted Regular Civil Suit No.181 of 2015, inter alia, challenging sale deed dated 08.05.1995 in favour of the applicant for the land situated at revenue Survey Nos.144, 145 and 151 of Village Dadali, Tal.Vinchhiya, Dist.Rajkot. They have also prayed for restoration of possession of the land in their favour. The case of the plaintiffs is that the mother of the plaintiffs - Savitaben passed away on 07.08.1998 and their grandfather - Maiyaram Karshandas had purchased the suit land, in question on 09.12.1957 from Kachar Bhojbhai Jethabhai. It is further asserted by the plaintiffs that the sale deed in favour of the defendant-present applicant dated 08.05.1995 is illegal because the said defeats their rights since the father of the plaintiffs was illiterate person and, therefore, he could not object to the sale deed during his lifetime. With such and other averments the suit was instituted.
3. It is the case of the present applicant that on being served with the summons of the suit he filed an application below Exh.12 under Order VII Rule 11(a)(b)(d) of the CPC, on the ground that the suit [Regular Civil Suit No.181 of 2015] of the plaintiffs is barred by limitation and there is absolutely no cause of action for instituting the suit and even otherwise sufficient Court fee stamp is not affixed.
SUBMISSIONS :-
4. Learned advocate Mr.Majmudar, appearing for the applicant - original defendant has tendered a copy of the order dated 23.10.2017 passed by the Collector, District Rajkot, confirming the order dated 21.08.2015 passed by the Deputy Collector, Jasdan, and a copy of which is also supplied to the learned advocate Ms.Tanaya G. Shah, appearing for the opponent Nos.1, 2 and 5, to which she has submitted that she is aware of the said order and she does not dispute the same. The same is ordered to be taken on record.
Page 2 of 15 Downloaded on : Fri Sep 23 21:44:19 IST 2022C/CRA/141/2016 CAV JUDGMENT DATED: 23/09/2022 5. Learned advocate Mr.Majmudar, appearing for the applicant has
submitted that the impugned order rejecting the application filed by the applicant - original defendant is required to be quashed and set aside since the Court below has failed to appreciate the fact that the suit itself is barred by limitation. He has further submitted that the perusal of the plaint would reveal that the suit is filed after the order dated 21.08.2015 is passed by the Deputy Collector, Jasdan rejecting the application of the plaintiffs, which was filed challenging the revenue entry No.327 recorded on 03.05.1996.
6. It is submitted that taking a clue from the order passed by the Deputy Collector, wherein it is observed that the plaintiffs can file a suit seeking a declaration declaring the documents as forged, the suit is instituted. He has submitted that in view of the specific averments made in the plaint, the same is barred by limitation, since the revenue entry No.327 was mutated on 03.05.1996 when the father of the plaintiff was alive.
7. Learned advocate Mr.Majmudar, has submitted that the order passed by the Deputy Collector as well as the District Collector, Rajkot district confirms the fact that the revenue entry No.327 was mutated on 08.03.1996 and was certified on 31.05.1996. It is submitted that after undertaking the necessary procedures of issuance of notice under Section 135(d) of the Gujarat Revenue Code, 1879, which was received by the father of the applicant, such entry was mutated and certified and a public notice in this regard was also pasted at Chavdi Gram Panchayat by the concerned Talati. Thus, it is submitted that in the year 1996 itself, the father of the plaintiffs was having the actual knowledge of the mutation entry, however after a period of 20 years, the heirs of Vishnudas Atmaram Desani have instituted the suit. It is, thus submitted that in view of the undisputed fact, the suit can be said to be barred by the provisions of Order VII Rule 11(d) of the CPC, and hence, the trial court should have allowed the application filed under Order VII Rule 11(a)(b)(d) of the CPC, Exh.12.
Page 3 of 15 Downloaded on : Fri Sep 23 21:44:19 IST 2022C/CRA/141/2016 CAV JUDGMENT DATED: 23/09/2022 7.1 Learned advocate Mr.Majmudar, in support of his submissions has
placed reliance on the judgment of the Division Bench of this Court in the case Chandrakant Kantilal Jhaveri vs. Madhuriben Gautambhai, [2011(1) GLR 270].
7.2 Reliance is also placed on the judgment of Supreme Court in the case of Padhiyar Prahladji Chenaji (Deceased) Vs. Maniben Jagmalbhai (Deceased), [2022 (4) Scale 352] and on the judgment of Division Bench passed in the case of Manglaben Maganlal Modi vs. Jitendrabhai Bhikhabhai Patel, [2021 SCC OnLine Guj 1228].
7.3 While placing reliance on the judgment of Supreme Court in the case of Dilboo (Dead) vs. Dhanraji (Dead), [(2000) 7 SCC 702], it is submitted that whenever a document is registered, the date of registration becomes the date of deemed knowledge and in other cases where a fact could be discovered by due diligence then deemed knowledge would be attributed to the plaintiffs because the party cannot be allowed to extend period of limitation by merely claiming that he had no knowledge. It is submitted by learned advocate Mr.Majmudar that the allegations with regard to the forged documents and power of attorney as well as sale deed are afterthought since during the lifetime, the father of the plaintiffs has not made any efforts to take the possession of the said land. It is, thus, submitted that in view of the specific findings recorded in the order dated 21.08.2015, confirming by the order dated 23.10.2017 passed by the District Collector, Rajkot district with regard to the delay in challenging the revenue Entry No.327, which was certified on 03.05.1996, Regular Civil Suit No.181 of 2015 filed by the plaintiffs cannot be entertained as the same is barred by limitation. Reliance is also placed in this regard on Article 59 of the Limitation Act, 1963.
8. In response to the aforesaid submissions, learned advocate Ms.Tanaya Shah, appearing for the respondents has vehemently submitted that the revision Page 4 of 15 Downloaded on : Fri Sep 23 21:44:19 IST 2022 C/CRA/141/2016 CAV JUDGMENT DATED: 23/09/2022 application is not required to be entertained, as the impugned order rejecting the application filed by the applicant - original defendant is appropriately passed by the Court below. She has submitted that the issue of limitation is a question of fact and law, which can only be examined during the trial proceedings. She has further submitted that the sale deed, which was purported to have been executed by the father of the plaintiffs, in view of the forged power of attorney is forged and such aspect can only be gone into after appropriate evidence is examined by the Trial Court in the suit. She has submitted that the cause of action arose, on 14.06.2013, vide a distribution deed, when the plaintiffs' father late Vishnudas Atmaram Desani distributed his assets amongst the family members, including the said lands between the plaintiffs i.e. three sons. It was realized that Entry No.327 was entered in the revenue record was bearing the name of the defendant applicant and hence, an RTI application under the provisions of the Right to Information Act, was filed on 13.09.2013 seeking revenue records and other documents pertaining to the said land and at that time, the respondents plaintiffs became aware of the revenue entry No.327 made in the name of the defendant applicant. She has submitted that upon knowing the said fact, immediately an appeal being Appeal No.27 of 2013 was filed before the Deputy Collector and Sub-Divisional Magistrate, Jasdan for quashing and setting aside the revenue entry No.327. However, by the order dated 21.08.2015, the Deputy Collector, rejected the application on the ground of delay, challenging the said entry with a liberty to challenge the said sale deed dated 08.05.1995 before the appropriate Civil Court. Thereafter, an appeal has been filed, which has been rejected by the order dated 23.10.2017 by the Collector, Rajkot district (A copy of which has been supplied to the learned advocate appearing for the respondents). She has submitted that after the aforesaid order was passed, Regular Civil Suit No.181 of 2015 was filed challenging the said sale deed dated 08.05.1995 on the ground that the same is a forged sale deed, since it bears the signatures of the Page 5 of 15 Downloaded on : Fri Sep 23 21:44:19 IST 2022 C/CRA/141/2016 CAV JUDGMENT DATED: 23/09/2022 father of the plaintiffs, however, their father used to put thumb impression. Thus, it is submitted that since the cause of action arose when it was realized by the plaintiffs that the revenue entry has been made in view of the forged sale deed and power of attorney, it cannot be said that the suit is barred by limitation.
9. In support of her submissions, learned advocate Ms.Shah, has placed reliance on the judgment in the case of Chhotanben and Anr. vs. Kiritbhai Jalkrushnabhai Thakkar and others, (2018) 6 SCC 422, and has submitted that the provisions of Article 59 or other articles of the Limitation Act, 1963, whether would be applicable or not has to be considered at appropriate stage and the same is triable issue and the plaint cannot be rejected at the threshold in exercise of powers under Order VII Rule 11(d) of the CPC. She has further submitted that the facts of the present case are akin to the said case, which has been examined by the Supreme Court as the plaintiffs had immediately, after hearing knowledge about the fraudulent sale deed, have filed the suit. She has further submitted that the concerned land was only given for maintaining and taking care to the defendant - as father of the plaintiffs lived like a saint and never remained at one particular place.
10. Reliance is also placed on the judgment of the Supreme Court in the case of P.V. Guru Raj Reddy and antoher Vs. P. Neeradha Reddy and others, [(2015) 8 SCC 331] for the proposition of law that only if the averments in the plaint ex facie do not disclose a cause of action or on reading thereof, the suit appears to be barred under any law, the plaint can be rejected and in all other situations, the claim will have to be adjudicated in the course of trial. She has further placed reliance on the judgment of the Supreme Court in the case of Popat and Kotecha Property Vs. State Bank of India Staff Association, [(2005) 7 SCC 510].
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11. While placing reliance on the judgment of the Coordinate Bench dated 26.06.2015 passed in Civil Revision Application No.12 of 2015, she has submitted that in each and every case where an instrument is registered, it cannot be held that there is a deemed knowledge of such instrument and where a fact would be discovered due to diligence then deemed knowledge would be attributed to the plaintiffs and in case of registered documents also, to any situation which are not covered under Section 3 of the Transfer Property Act, and it is always open for the plaintiff to point out as to the manner and source of knowledge of the transaction and to establish that such fact could not have been discovered by due diligence and therefore, the plaintiffs cannot be attributed deemed knowledge of offending transaction. She has further submitted that all the aforesaid issues require thorough examination and full fresh trial, hence the impugned order may not be disturbed. Reliance is also placed on the judgment dated 10.05.2019 passed in First Appeal No.124 of 2014 by the learned advocate Ms. Shah, and has submitted that in an identical set of fact, it is held by this Court that the defence of the defendants however may be strong, the same cannot be made a basis for rejecting the plaint, even if the suit is field after a period of 28 years and that by itself would not be sufficient to reject the plaint, at the threshold. Thus, she has submitted that the issue with regard to the forgery of the sale deed and power of attorney can only be examined in the suit proceedings and hence, the impugned order passed by the learned Judge, rejecting the application filed by the applicant under Exh.12 may not be interfered with.
CONCLUSION :-
12. This Court has heard the learned advocates appearing for the respective parties, at length. The documents on record are also perused.
13. The established facts on record are that the plaintiffs have filed the suit being Regular Civil Suit No.181 of 2015 before the Principal Civil Judge, Page 7 of 15 Downloaded on : Fri Sep 23 21:44:19 IST 2022 C/CRA/141/2016 CAV JUDGMENT DATED: 23/09/2022 Jasdan inter alia challenging the said sale deed dated 08.05.1995. The defendants - applicant filed an application under Order VII Rule 11(d) of the CPC for rejection of the plaint (Exh.12), and after hearing the respective parties, by the impugned order dated 29.02.2016, the same is rejected. The rejection of the said application below Exh.12 has given rise to the present revision application under the provisions of Section 115 of the CPC.
14. It is the case of the applicant - original defendant that the suit is barred by limitation as per provision of Article 59 of the Limitation Act, 1983, since the sale deed is sought to be challenged after a period of 20 years. It is the case of the plaintiffs that on 14.06.2013 when their late father Vishnudas Atmaram Desani, decided to distribute his assets amongst the family members, they came to know about the revenue entry No.327 made in the name of the original defendant - applicant. In view of the purported sale deed dated 08.05.1995, the plaintiffs accordingly filed an application under the provision of the Right to Information Act, on 13.09.2013 seeking revenue records and other documents pertaining to said land, which were subsequently supplied to them on 19.10.2013 and it is the specific case of the plaintiffs that they came to know about the revenue entry No.327. The father of the plaintiffs late Vishnudas Aatmaram Desani filed an appeal being Appeal No.27 of 2013 under the Gujarat Land Revenue Rules, 1972 before the Deputy Collector, Jasdan seeking quashing and setting aside the revenue entry No.327 along with the application for condonation of delay in filing the said appeal. Vide order dated 21.08.2015, the Deputy Collector rejected the application for condonation of delay in filing the appeal on the ground of delay observing that such entry cannot be said to be set aside after a period of 20 years. Thereafter, the father of the plaintiffs Vishnudas Atmaram Desani passed away on 20.07.2015 and the plaintiffs heirs of Vishnudas Atmaram Desani challenged the aforesaid order before the District Collector under Rule 108(5) of the Land Revenue Rules. By Page 8 of 15 Downloaded on : Fri Sep 23 21:44:19 IST 2022 C/CRA/141/2016 CAV JUDGMENT DATED: 23/09/2022 an order dated 23.10.2017, their application was rejected. It is the case of the plaintiffs that immediately after the order dated 21.08.2015, they filed Regular Civil Suit No.181 of 2015 before the Court of Principal Civil Judge, Jasdan.
15. The aforesaid suit is filed before the order dated 23.10.2017 passed by the Collector rejecting their appeal. In the affidavit in reply filed by the respondents - plaintiffs, it is specifically averred that after the aforesaid order and in the circumstances narrated therein, the suit is filed in October, 2015. A perusal of the order dated 21.08.2015 passed by the Deputy Collector, Jasdan rejecting the application of the plaintiffs challenging the revenue entry No.327, certified on 03.05.1996 reveal that the Deputy Collector has refused to entertain the application filed by the plaintiffs on the ground of delay. The relevant part of the order dated 21.08.2015, passed by the Deputy Collector, is incorporated as under. Along with the plaint, the plaintiffs have produced the order dated 21.08.2015. The relevant portion of the order is translated and reads as under (translated from original Guajarati):
"Thus, considering the above noted facts and premises, the disputant in the present case, i.e. Appellant Vishnudasbhai Atmaram Deshani, has got the registered Sale Deed executed before the Office of Sub Registrar, Surat in favor of his brother and after receiving sufficient consideration thereof. Moreover, he himself has given an application, along with a copy of the Sale Deed, before the Talati to get the immovable property registered in name of Shri Hiradas Atmaram in the Revenue Records and accordingly, the mutation entry no. 327 came to be admitted in the Revenue Records. Further, in the notice under Section-135(d), the Appellant has put his signature before the Talati. As per the judgment of the Hon'ble High Court, where a person executes a deed and also accepts the amount of consideration, he cannot be considered as an Page 9 of 15 Downloaded on : Fri Sep 23 21:44:19 IST 2022 C/CRA/141/2016 CAV JUDGMENT DATED: 23/09/2022 'Aggrieved Person' and he cannot be allowed to take benefits of his own wrong deed. Such a judgment has been pronounced by the Hon'ble Gujarat High Court in Rinki Shashikant Gandhi Versus The Mamlatdar, Vadodara and Ors case. The delay of 20 years on part of the disputant is also not admissible in the absence of any cogent reason. Therefore, the demand for 'Delay Condonation' does not seems to be admissible. As the Appeal is not admissible following order is issued.
ORDER:-
The Appellant's application for Delay Condonation is rejected. With regard to the document having forged, a suit can be preferred before the competent Civil Court. It is ordered to uphold the order dated 31/05/1996 of the subordinate court certifying the mutation entry, i.e. Dadli Village ROR Entry no. 327. "
16. A plain and simple reading of the aforesaid order reveals that the Deputy Collector has observed that the revenue entry No.327 has been mutated by issuing a notice under Section 135(d) of the Gujarat Land Revenue Code, wherein the father of the plaintiffs has put his signature before the Talati and accordingly, he has also accepted the sale consideration. By observing this, the application seeking condonation of delay has been rejected observing that such entry cannot be altered after a period of 20 years. The Deputy Collector has also placed reliance on the judgment of this Court, however while passing the final order, the Deputy Collector has observed that the applicant / plaintiff can file appropriate suit with regard to the forged documents. After the aforesaid order, the father of the plaintiffs Vishnudas Atmaram Desani passed away on 20.07.2015. Thereafter, the heirs of the original plaintiff, have challenged the aforesaid order passed by the Deputy Collector under Rule 108(5) of the Gujarat Land Revenue Rules and by the order dated 23.10.2017, the Collector, Rajkot district has also rejected the appeal filed by the plaintiffs.
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17. The following facts are established from the documents on record.
(a) The execution of power of attorney dated 05.04.1993 executed by the father of the plaintiffs late Shri Vishnudas in favour of the defendant,
(b) The registration of the sale deed dated 08.05.1995;
(c) Issuance of notice under Section 135(d) of the Gujarat Land Revenue Code, on 08.03.1996;
(d) The receipt of such notice by the father of the plaintiffs in presence of Talati;
(e) The mutation of the entry No.327 on 08.03.1996;
(f) The certification of the entry No.327 dated 31.05.1996.
18. It is well settled proposition of law that while considering the averments of the plaint, the Court is required to consider the averments in the plaint and the supporting documents produced along with the plaint since the same are treated as a part of the plaint as stipulated under the provisions of Order VII Rule 14(1) of the CPC. Along with the plaint, the plaintiffs have produced the general power of attorney (mark : 4/8) dated 05.04.1993 and the registered sale deed. The order of the Deputy Collector dated 21.08.2015 rejecting the appeal filed by the plaintiffs and his father challenging the revenue Entry no.327 is also produced at Mark: 4/5. In the plaint, it is specifically averred that the defendant had obtained the power of attorney of their father fraudulently and accordingly the sale deed has been executed on 08.05.1995 without consent of their father by preparing bogus documents. It is asserted that the entire proceedings are done on the basis of general power of attorney. It is also asserted that no sale consideration was paid, hence the sale deed and the transaction is null and void ab intio.
19. It is narrated in the registered sale deed entered between late Shri Vishnudas and his brother, Haridas (defendant) that "there was already an encumbrance of Rs.20,000/- when the land was entered in the name of late Page 11 of 15 Downloaded on : Fri Sep 23 21:44:19 IST 2022 C/CRA/141/2016 CAV JUDGMENT DATED: 23/09/2022 Vishnubhai and the cost of land was less than that. It is also mentioned that as per the oral agreement the defendant was given the right and ownership of the land since 1978, and since then he is in possession of the said land. It is also narrated that since all the debts along with interest are paid by the defendant-
Haridas, hence the land is free from all encumberances; he (Vishnudas) has said to have received the sale consideration, however, the amount is less, but the stamp is valued as per the market value of land at Rs.97,500/-. From the averments in the plaint, it is surprising to note that though the plaintiff has alleged that the power of attorney has been fraudulently obtained from their father, and has been used for subsequent transaction of preparing a registered sale deed, however, the plaintiff has not sought any declaration for setting aside the general power of attorney. During his life time, late Shri Vishnudas has not challenged the sale deed, but has only initiated proceedings before the Deputy Collector by filing Appeal No.27 of 2013 seeking setting aside Revenue entry no.327. It is also pertinent to note that though in the plaint it is specifically narrated that the father of the plaintiffs has challenged the revenue entry in the year 2013, however there is no whisper about challenging or questioning of the power of attorney executed by late Shri Vishnubhai during his life time. As noted hereinabove, father of the plaintiffs and brother of the defendant passed away on 20.07.2015, and the Deputy Collector rejected the appeal on 21.08.2015, after his death. Thereafter, the suit is filed by his legal heirs challenging the registered sale deed. It is not conceivable that for the period of 20 years, the father of the plaintiffs and the plaintiffs did not realise the registration of mutation entry no.327 though the defendant has been in possession of the land and is using the same for cultivation. Thus, the filing of the suit appears to be vexatious in order to jeopardise the possession of the defendant.
20. At this stage, it would be apposite to refer to the observations made by the Apex Court in the case of Padhiyar Prahladji Chenaji (supra), which reads Page 12 of 15 Downloaded on : Fri Sep 23 21:44:19 IST 2022 C/CRA/141/2016 CAV JUDGMENT DATED: 23/09/2022 thus :-
"8.1 In the case of Dilboo Vs. Dhanraji, (2000) 7 SCC 702, it is observed and held by this Court that where there is a dispute that the suit is filed beyond the period of limitation, the plaintiff would have to aver and prove that the suit is within the period of limitation as prescribed and in the absence of any averment or proof to show that the suit is within time, it is the plaintiff who would fail. It is further observed that whenever a document is registered the date of registration becomes the date of deemed knowledge. It is further observed that in other cases where a fact could be discovered by due diligence then deemed knowledge would be attributed to the plaintiff because a party cannot be allowed to extend the period of limitation by merely claiming that he had no knowledge.
8.2 Applying the law laid down by this Court in the aforesaid decision to the facts of the case on hand, it is noted that the registered sale deed in favour of defendant No.1 is dated 17.06.1975 and thereafter immediately the name of defendant No.1 - purchaser was mutated in the Revenue record, which continued till the filing of the suit and the name of defendant No.1 is shown as an owner and cultivator and even the crop grown is also shown and when the plaintiff claims that she is in possession and cultivating the land, she would have known the above facts, if she had exercised due diligence and therefore as observed by this Court, the plaintiff(s) can be said to have deemed knowledge of the title as well as possession of defendant No.1. It is to be noted that even in the registered sale deed, it was mentioned that the possession of the entire land in question has been handed over to defendant No.1 - purchaser. At this stage, it is required to be noted that the execution of the registered sale deed and the payment of full sale consideration mentioned in the registered sale deed has been believed and accepted by all the courts below. Therefore, there was no reason for the trial court not to believe the averments in the registered sale deed of handing over the possession to the defendant No.1 - purchaser. The relief of permanent injunction sought by the plaintiff as such was a consequential relief, which shall be discussed herein below.
8.3 Therefore, once the suit is held to be barred by limitation qua the declaratory relief and when the relief for permanent injunction was a consequential relief, the prayer for permanent injunction, which was a consequential relief can also be said to be barred by limitation. It is true that under normal circumstances, the relief of permanent injunction sought is a substantive relief and the period of limitation would commence from the date on which the possession is sought to be disturbed so long as the interference in possession continuous. However, in the case of a consequential relief, when the substantive relief of declaration is held to be barred by limitation, the said principle shall not be applicable".
21. The Supreme Court, while placing reliance in the case of Dilboo (supra), has observed that whenever a document is registered, the date of registration becomes a date of deemed knowledge. In the present case, after the entry was mutated and certified in the year 1996. The purchaser i.e. the defendant has been continued in the possession of the concerned land. In fact the father of plaintiffs was having the actual knowledge of power of attorney Page 13 of 15 Downloaded on : Fri Sep 23 21:44:19 IST 2022 C/CRA/141/2016 CAV JUDGMENT DATED: 23/09/2022 and the registration of sale deed, and the mutation entry in the year 1995-96. He has raised the objection with regard to the same as having being forged after a period of 20 years.
22. Reliance placed by the respondents on the decision of the Apex Court in case of Chottanben (supra) will not come to their rescue since in the same will not apply to the facts of the present case. The facts of the said case suggest that there was dispute amongst the brothers, who were the joint owners of the property and the said property was sold after forging their thumb impressions and they did not have any knowledge about the execution of the sale deed. As stated hereinabove, in the present case though it is alleged that the entire transactions have been done by obtaining fraudulent power of attorney, no relief is sought against it in the plaint. It is not the case of the plaintiffs in the present case, that their father Vishnubhai was not aware of the general power of attorney, pursuant to which the sale deed was executed.
23. There cannot be any cavil on the proposition of law as enunciated in the decisions of the Apex Court in the cases of Popat amd Kotecha Property (supra) and P.V.Guru Raj Reddy (supra) wherein the Apex Court has reiterated that the stand of the defendants in their written statement or in their application filed under Order VII Rule 11 of the CPC is immaterial and the averments made in the plaint are required to be examined. In case judgements dated 10.05.2019 passed in First Appeal No.124 of 2014 and 26.06.2015 passed in Civil Revision Application No.12 of 2015, the Coordinate Benches of this Court has explained the principle of deemed knowledge. After survey of various judgements of the Supreme Court, this Court has held that in every case of registered document, the principle of deemed knowledge has to be applied, and in other cases where a fact could be discovered by "due diligence" then deemed knowledge would be attributed to the plaintiff because a party cannot be allowed to extend the period of limitation by merely claiming that he had no Page 14 of 15 Downloaded on : Fri Sep 23 21:44:19 IST 2022 C/CRA/141/2016 CAV JUDGMENT DATED: 23/09/2022 knowledge. In the instant case, the plaintiffs have not questioned the general power of attorney executed in the year 1993 between late Vishnudas and his real brother Haridas - defendant. If the case of the plaintiffs is be believed that they came to know about the documents being forged after 20 years, then such an explanation is not palatable since the defendant was in possession of the land all these years and was cultivating the same. The plaintiffs have failed to exercise "due diligence" for a period of 20 years. It appears that the entire proceedings of challenging the Entry No.327 only before the Authority and obtaining the orders to challenge the sale deed is a well thought plan and appears to have been undertaken in order to frustrate the limitation.
24. Considering the averments in the plaint and the bundle of facts stated in the plaint, I am of the opinion that by clever drafting the plaintiffs have tried to bring the suit within the period of limitation which, otherwise, is barred by law of limitation.
25. The Revision Application succeeds. The impugned order dated 29.02.2016 passed below Exh.12 on Regular Civil Suit No.181 of 2015 is quashed and set aside. As a squeal, the plaint stands rejected. Rule is made absolute.
(A. S. SUPEHIA, J) MAHESH BHATI Page 15 of 15 Downloaded on : Fri Sep 23 21:44:19 IST 2022