Gujarat High Court
Emrald Co Operative Housing Society Ltd vs Manguben Thakor The Daughter Of Ataji ... on 26 August, 2016
Author: Z.K.Saiyed
Bench: Z.K.Saiyed
C/CRA/405/2015 CAV JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
CIVIL REVISION APPLICATION NO. 405 of 2015
With
CIVIL REVISION APPLICATION NO. 406 of 2015
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE Z.K.SAIYED
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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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EMRALD CO OPERATIVE HOUSING SOCIETY LTD....Applicant(s)
Versus
MANGUBEN THAKOR THE DAUGHTER OF ATAJI CHATURJI THAKOR &
7....Opponent(s)
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Appearance:
MR DHAVAL DAVE, SENIOR COUNSEL with MR JIGAR M PATEL,
ADVOCATE for the Applicant(s) No. 1
MR MILAN N PATEL, ADVOCATE for the Applicant(s) No. 1
MR SHALIN MEHTA, SENIOR COUNSEL with MR VIMAL A PUROHIT,
ADVOCATE for the Opponent(s) No. 1
NOTICE UNSERVED for the Opponent(s) No. 2 - 6 , 7.1 - 7.4 , 8.1 - 8.3
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CORAM: HONOURABLE MR.JUSTICE Z.K.SAIYED
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C/CRA/405/2015 CAV JUDGMENT
Date : 26/08/2016
CAV JUDGMENT
1. The present petitioner has filed Civil Revision Application Nos.405 and 406 of 2015 under Section 115 of the Civil Procedure Code praying to quash and set aside the order dated 22.9.2015 passed by the learned Fourth Additional Civil Judge, Kalol, below an application Ex.21 and 20 in the Civil Suit Nos.67 and 68 of 2013 under the provisions of Order 7 Rule 11(d) of the Code of Civil Procedure.
2. It is pointed out by the learned advocate for the petitioner that other respondents being respondent Nos.2 to 6, 7.1 to 7.4 and 8.1 to 8.3 are the original defendant Nos.2 to 4 and their legal heirs in the suit proceedings. It is submitted by the advocate for the petitioner that they have not contested these suits before the trial Court also and, therefore, their presence is not required.
3. As the present proceedings arise out of an application under Order 7 Rule 11(d) of the Civil Procedure Code, 1908, and the question remains to be answered by this Court and thus Page 2 of 30 HC-NIC Page 2 of 30 Created On Sat Aug 27 00:36:22 IST 2016 C/CRA/405/2015 CAV JUDGMENT with the consent of both the parties the matter is taken up for final hearing. Hence rule.
4. Heard Dhaval C. Dave, learned Senior Counsel with Mr.Jigar Patel, learned counsel for the petitioner society and Mr.Shalin Mehta, learned Senior Counsel with Mr.Vimal Purohit, learned counsel for the respondent No.1.
5. The brief facts of the present case are that the respondent No.1 (plaintiff) has filed Civil Suit Nos.67 and 68 of 2013 against the petitioner society and present respondent Nos.2 to 14 (original defendant Nos.2 to 4) in the Court of Principal Civil Judge, Kalol. In the Civil Suit Nos.67 and 68 of 2013 the present respondent No.1 has prayed for a relief of cancellation of Sale Deeds and Indemnity Bond dated 11.5.1982 alleged to have been executed by her brothers in respect of her share in the suit land in favour of the petitioner society on 11.5.1982. The main basis for claiming the relief is that her three brothers forged her signature on the Sale Deed dated 11.5.1982 and executed the same in favour of the petitioner society.
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6. One Aataji Chaturji Thakor, who was the protected tenant and father of present respondent No.1 had been cultivating the concerned parcels of land prior to 1963. The Mamlatdar, Kalol, initiated the proceedings under Section 32F of Bombay Tenancy and Agricultural Act, 1948 with respect to the concerned parcels of land. In the said proceedings Aataji C. Thakor was declared to be deemed purchasers of the concerned parcels of land. The Mamlatdar vide order dated 31.12.1976 fixed a sum of Rs.7551/ as purchase price with respect to the concerned parcels of land. On payment of the aforesaid sum Aataji C. Thakor became the owner of the suit lands.
7. Aataji C. Thakor made an application dated 20.8.1982 to Taluka Development Officer of Kalol for the purpose of putting up the concerned parcels of lands including suit lands to nonagricultural purposes. Since the concerned parcels of lands were of restricted tenure, the Taluka Development Officer, Kalol, vide order dated 27.4.1982 granted nonagricultural permission with respect to the concerned parcels of land subject to payment of premium of Rs.34,425/ with Page 4 of 30 HC-NIC Page 4 of 30 Created On Sat Aug 27 00:36:22 IST 2016 C/CRA/405/2015 CAV JUDGMENT respect thereto. On payment of the aforesaid sums, various parcels of land including suit lands became free from any restrictions.
8. Aataji C. Thakor died intestate and on account thereof, Manguben - plaintiff, Sursangji Aataji Thakor - defendant No.2, late Shanaji Aataji Thakor - defendant No.3 and late Varsanghji Aataji Thakor - defendant No.4 being legal heirs of Aataji Thakor inherited the concerned parcels of lands including the suit lands and became the owners thereof. The concerned various parcels of land including the suit land were given block No.739.
9. Manguben - plaintiff, Sursangji Aataji Thakor - defendant No.2, late Shanaji Aataji Thakor - defendant No.3 and late Varsanghji Aataji Thakor - defendant No.4 executed four different Sale Deeds with respect to their one fourth shares in the concerned parcels of lands including the suit lands in favour of Emrald CoOperative Housing Society - petitioner on 12.5.1982. The four Sale Deeds came to be registered vide serial Nos.1531, 1533, 1535 and 1537 with the office of Sub Registrar. Since 12.5.1982 the petitioner society is in possession of the concerned Page 5 of 30 HC-NIC Page 5 of 30 Created On Sat Aug 27 00:36:22 IST 2016 C/CRA/405/2015 CAV JUDGMENT parcels of lands. The thumb impression of present respondent No.1 in the aforesaid Sale Deeds was identified by her brother before the Sub Registrar. The name of Emrald CoOperative Housing Society came to be mutated in the revenue record vide Entry Nos.5597, 5598, 5599 and 6000 on 30.6.1982. In village form Nos.7 and 12 also name of the petitioner society was entered as owner with respect to the concerned parcels of lands.
10. Heard Mr.Dhaval C. Dave, learned Senior Counsel for the petitioner. He has submitted that learned Judge has decided Ex.20 and 21 of the petitioner contrary to well settled principles governing an application under the provisions of Order 7 Rule 11(d) of the Civil Procedure Code.
11. Mr.Dave has submitted that respondent No.1 (plaintiff) alongwith other defendant Nos.2 to 4 of Civil Suit Nos.67 and 68 of 2013 had previously filed Civil Suit being Regular Civil Suit No.143 of 2004 against the petitioner society - defendant No.1 in the Court of Civil Judge at Kalol, seeking relief of declaration to the effect that Sale Deeds and Indemnity Bond, forming part of subject matter of Civil Suit No.67 and 68 of 2013 be Page 6 of 30 HC-NIC Page 6 of 30 Created On Sat Aug 27 00:36:22 IST 2016 C/CRA/405/2015 CAV JUDGMENT declared as null and void. The plaintiffs of Regular Civil Suit No.143 of 2004, except the plaintiff (respondent No.1) of Civil Suit No.67 and 68 of 2013 compromised with the petitioner society and executed a deed of confirmation dated 28.2.2007 in favour of the petitioner society which was registered on the same day with the office of Sub Registrar, Kalol. So far as respondent No.1 of Civil Suit No.67 and 68 of 2013 is concerned, she had chosen to continue with the proceedings of Regular Civil Suit No.143 of 2004 against the petitioner society and perused upto 2006. However, later on, on account of nonappearance of respondent No.1 Regular Civil Suit No.143 of 2004 came to be dismissed for default.
12. He has submitted that plaint of Civil Suit Nos.67 and 68 of 2013 establish that the suit of respondent No.1 is time barred. The learned Judge has recorded the finding that the bare perusal of the plaint of the suit establishes that though the suit of respondent No.1 was clearly time barred but the suits cannot be rejected at this stage which itself is improper as the same shall be in direct contravention to the very provisions of Order 7, Rule 11(d) of the Page 7 of 30 HC-NIC Page 7 of 30 Created On Sat Aug 27 00:36:22 IST 2016 C/CRA/405/2015 CAV JUDGMENT Civil Procedure Code which provides for rejection of plaint if the same is barred by any law. He has submitted that Hon'ble Apex Court has time and again held in catena of decisions that expression "barred by law"
occurring the phraseology of Order 7 Rule 11(d) of the Code of Civil Procedure would include within its sweep the expression "barred by law of limitation". Therefore the duty is cast upon the Court to reject the plaint of suit under the provisions of Order 7 Rule 11(d) of the Code of Civil Procedure when it appears to the Court while dealing with the application under provisions of Order 7 Rule 11(d) of the Code of Civil Procedure that the suit of land plaintiff is clearly time barred on bare perusal of the contents of the plaint of the suit and, therefore, no further evidence is required for the purpose of deciding the question on the aspect of limitation. In such circumstances it is always open for the Court to accept whatever is stated in the plaint and if still the same appears to be beyond the period of limitation, the plaint can be rejected as the aspect of mixed question of law and facts is to be answered in a case where there is dispute regarding the commencement of the period of limitation.Page 8 of 30
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13. He has submitted that respondent No.1 has filed Civil Suit Nos.68 and 67 of 2013 against the petitioner society after a period of 31 years after the execution of Registered Sale Deed dated 11.5.1982 in respect of her one fourth share in respect of the suit lands. Therefore, the action on the part of respondent No.1 is nothing but an abuse of process of law.
14. He has submitted that assuming without admitting for the time being that respondent No.1 was not aware about the registration of Sale Deeds in favour of the petitioner society on 11.5.1982 the respondent No.1 derived the knowledge about the registration of said Sale Deeds dated 11.5.1982 in favour of the present petitioner society in the year 2004, when she alongwith her brothers filed Regular Civil Suit No.143 of 2004 against the petitioner society in the year 2004. Therefore, the suit filed in the year 2013 against the petitioner society, having been filed after the expiry of three years from 2004, was patently time barred and hit by the provisions of Order 2 Rule 2 of the Civil Procedure Code, 1908 and ought to have been rejected under the applications moved by the Page 9 of 30 HC-NIC Page 9 of 30 Created On Sat Aug 27 00:36:22 IST 2016 C/CRA/405/2015 CAV JUDGMENT present petitioner under the provisions of Order 7, Rule 11(d) of the Code of Civil Procedure, 1908.
15. He has submitted that it is well settled principles of law that even if any document is to be challenged by any party by instituting a Civil Suit on the ground of fraud, it is to be challenged by the party alleging fraud within a period of limitation of three years as prescribed by the Limitation Act, 1963. It is submitted that it is well settled principles of law that whenever a document is registered, the date of registration becomes the date of deemed knowledge. The party cannot be allowed by merely claiming that he had no knowledge. In the present case the Sale Deed was registered in favour of petitioner society on 11.5.1982. Therefore, the respondent No.1 was deemed to have knowledge about the registration of the Sale Deed in favour of the petitioner society with effect from 11.5.1982. The present suits have been filed after a period of 31 years it was patently time barred and consequently the learned Judge ought to have rejected the plaint of Civil Suit Nos.68 and 67 of 2013 by exercising powers under the provisions of Order 7 Rule 11 of the Code of Civil Page 10 of 30 HC-NIC Page 10 of 30 Created On Sat Aug 27 00:36:22 IST 2016 C/CRA/405/2015 CAV JUDGMENT Procedure.
16. The respondent No.1 alongwith other defendant Nos.2 to 4 of Civil Suit No.67 and 68 of 2013 filed a criminal complaint being FIR No.289 of 2004 against the petitioner society at Kalol Police Station in connection with Sale Deeds forming part of subject matter of Civil Suit No.67 and 68 of 2013 in the year 2004. The said complaint came to be disposed of by the learned Judicial Magistrate on 16.1.2007. Therefore, assuming without admitting for the time being that respondent No.1 was not aware about the registration of Sale Deeds in favour of the petitioner society on 11.5.1982, respondent No.1 derived the knowledge about the registration of the said Sale Deeds dated 11.5.1982 in favour of the petitioner society in the year 2004, when she alongwith her brothers filed criminal complaint against the petitioner society in the year 2004. Therefore also the suits filed in the year 2013 against the petitioner society have been filed after the expiry of three years from 2004. It was patently time barred and ought to have been rejected under an application moved by the present petitioner under the provisions of Order 7 Rule 11(d) of the Code Page 11 of 30 HC-NIC Page 11 of 30 Created On Sat Aug 27 00:36:22 IST 2016 C/CRA/405/2015 CAV JUDGMENT of Civil Procedure.
17. When the suit is not based on nonpayment of consideration, the issue will not arise in the suit. Section 55 of the Transfer of Property Act confers the limited right of filing an application for recovering the consideration and not beyond that. Sub section (4) clause (b) of Section 55 says that seller is entitled where the ownership of the property has passed to the buyer before payment of the whole of the purchase- money, to a charge upon the property in the hands of the buyer, any transferee without consideration or any transferee with notice of the non-payment, for the amount of the purchase-money, or any part thereof remaining unpaid, and for interest on such amount or part from the date on which possession has been delivered. The Sale Deed is composite. If the Sale Deed is read as a whole it refers to all four together. The reference of four cheques issued in the Sale Deed shows that cheques are issued to all the four assignees. The issue of nonpayment is internal matter of heirs and present petitioner is not concerned with the same. So far as challenge to the Sale Deed is concerned, it is a ground of challenge. Notice is not received is also Page 12 of 30 HC-NIC Page 12 of 30 Created On Sat Aug 27 00:36:22 IST 2016 C/CRA/405/2015 CAV JUDGMENT a ground of challenge. Challenge to Sale Deed on any ground, including the ground of fraud is required to be brought within a period of limitation. The first suit i.e. Regular Civil Suit No.143 was filed in November, 2004. The suit was compromised qua rest of the plaintiffs of the suit and not qua respondent No.1. The contention of respondent No.1 that she was not aware about the suit is not capable to believe. The respondent No.1 remained as sole plaintiff of the suit and till the year 2006 the suit remained alive. In the year 2006, the suit got dismissed. The respondent No.1 was in knowledge in the year 2004, 2006 and present suit in the year 2013. The suit is cleverly drafted plaint and nothing is mentioned about the date of knowledge. Therefore, Sale Deeds dated 12.5.1982 and thereafter mutation entry effected are considered to be deemed date of knowledge of respondent No.1. Deliberate attempt not to disclose the date of knowledge and then to say it requires trial, cannot be considered and it is abuse of process of law. The respondent No.1 is absolutely silent about date of knowledge in the whole plaint.
18. Learned counsel has submitted that learned Judge has observed in his order that present Page 13 of 30 HC-NIC Page 13 of 30 Created On Sat Aug 27 00:36:22 IST 2016 C/CRA/405/2015 CAV JUDGMENT suit is barred by law of limitation. In support of his above submissions he has relied on the decisions in the case of (1) Kanjibhai Bhagwanjibhia Patel vs. Nanduben Shamjibhai Sorathiya through P.O.A. Dharmesh P. Trivedi, reported in 2013 (1) GLR 51 (2) Becharbhai Zaverbhai Patel and Anr. vs. Jashbhai Shivabhai Patel and Ors., reported in 2013(1) GLR 398 (3) N.V.Srinivasa Murthy and Ors vs. Mariyamma (dead) by L.Rs reported in AIR 2005 SC 2897 (4) Smt. Dilboo (Dead) by Lrs. & Ors. Vs. Smt. Dhanraji (Dead) and Ors. Reported in 2000 (7) SCC 702 (5) Hardesh Ores Pvt. Ltd., vs. Hede And Company, reported 2007 (5) SCC 614 and (6) Fatehji & Company vs. L.M.Nagpal, reported in AIR 2015 SC 2301.
19. Heard Mr.Shalin Mehta, learned Senior Counsel for the respondent No.1 - original plaintiff. He has submitted that the question of limitation is a mixed question of fact and law which can be determined only by leading evidence.
20. In the four Sale Deeds dated 12.5.1982, the thumb impression is not of the respondent No.1. The mutation entry was made on 30.6.1982 in the revenue record. The Regular Page 14 of 30 HC-NIC Page 14 of 30 Created On Sat Aug 27 00:36:22 IST 2016 C/CRA/405/2015 CAV JUDGMENT Civil Suit No.143 of 2004 is filed on 6.11.2004 wherein present respondent No.1 is party. On 30.9.2006, Ex.5 of Regular Civil Suit No.143 of 2004 was decided after bi parte hearing. On 20.2.2007, the registered confirmation deed pending the Regular Civil Suit No.143 of 2004 was signed by all heirs except respondent No.1. The Regular Civil Suit No.143 of 2004 was dismissed for default in the year 2009. Therefore this is a case of trial. The respondent No.1 has not received sale consideration. He has submitted that fraud is played with the respondent No.1. The respondent had no knowledge of the fraud played upon her.
21. Learned counsel has further submitted that looking to the settled legal position the learned trial Judge was right in rejecting the application preferred by the present petitioner society. He has also drawn attention of the Court to the operative portion of the impugned order wherein the learned Judge has relied upon the Supreme Court decision in the case of Surjitkumar Gill and Ors. Vs. Adarshkumar Gill, reported in 2014 SAR (Civil) 350 SC, wherein the Apex Court has categorically held that question of limitation is a mixed question of law and Page 15 of 30 HC-NIC Page 15 of 30 Created On Sat Aug 27 00:36:22 IST 2016 C/CRA/405/2015 CAV JUDGMENT facts and hence the same can be decided only at the stage of trial. Lastly he has prayed to dismiss both the Revision Applications.
22. I have heard learned counsel for the respective parties. I have gone through the entire material produced on record. I have gone through the order passed by the trial Court. I have considered the submissions advanced by both the sides and reliance placed on the decisions.
23. Both Civil Revision Applications are preferred against the order dated 22.9.2015 passed below Ex.21 and 20 in Civil Suit Nos.67 and 68 of 2013 respectively. The applications were preferred under the provisions of Order 7 Rule 11(d) of the Civil Procedure Code seeking rejection of plaint on the ground that the suit is patently barred by the provisions of the Limitation Act, 1963 to the effect that the Sale Deeds in question are registered Sale Deeds and mutation entries to that effect were mutated in the name of society way back in 1982 and present suits have been filed in the year 2013.
24. Certain undisputed facts emerging from the bare reading of the plaint which may be necessary for adjudication of the present Page 16 of 30 HC-NIC Page 16 of 30 Created On Sat Aug 27 00:36:22 IST 2016 C/CRA/405/2015 CAV JUDGMENT Revision Applications are as under: (1) The Sale Deeds in question are Registered Sale Deed.
(2) The Sale Deeds are dated 11.5.1982. (3) There is no averment in the plaint regarding the date of knowledge of registration of Sale Deeds.
(4) Mutation Entries reflecting the Sale Deeds were made in the year 1982. (5) The core question raised by the respondent No.1 is that no sale consideration is received.
(6) There is a prayer with regard to obtaining possession also.
(7) The Suits are preferred in the year 2013.
1.I have given thoughtful consideration to the facts as averred in the plaints. It is an undisputed fact that the Sale Deeds are registered and possession has been handed over to the society way back in 1982 and the revenue entries to that effect were also mutated in the year 1982.
2. To appreciate the submissions it is necessary to rely on the provisions of Limitation Act. Section 17 of the Limitation Act is relevant. It reads as under: Page 17 of 30 HC-NIC Page 17 of 30 Created On Sat Aug 27 00:36:22 IST 2016 C/CRA/405/2015 CAV JUDGMENT "17. Effect of fraud or mistake (1) Where, in the case of any suit or ap plication for which a period of limitation is prescribed by this Act
(a) the suit or application is based upon the fraud of the defendant or respondent or his agent; or
(b) the knowledge of the right or title on which suit or application is founded is concealed by the fraud of any such person as aforesaid; or
(c) the suit or application is for relief from the consequences of a mistake; or
(d) where any document necessary to estab lish the right of the plaintiff or applic ant has been fraudulently concealed from him;
the period of limitation shall not begin to run until the plaintiff or applicant has discovered the fraud or the mistake or could, with reasonable diligence, have discovered it; or in the case of a con cealed document, until the plaintiff or the applicant first had the means of pro ducing the concealed document or compel ling its production:
PROVIDED that nothing in this section shall enable any suit to be instituted or application to be made to recover or en force any charge against, or set aside any transaction affecting, any property which
(i) in the case of fraud, has been pur chased for valuable consideration by a person who was not a party to the fraud and did not at the time of the purchase know, or have reason to believe, that any fraud had been committed, or
(ii) in the case of mistake, has been purchased for valuable consideration sub sequently to the transaction in which the mistake was made, by a person who did not Page 18 of 30 HC-NIC Page 18 of 30 Created On Sat Aug 27 00:36:22 IST 2016 C/CRA/405/2015 CAV JUDGMENT know, or have reason to believe, that the mistake had been made, or
(iii) in the case of concealed document, has been purchased for valuable consider ation by a person who was not a party to the concealment and, did not at the time of purchase know, or have reason to be lieve, that the document had been con cealed.
(2) Where a judgementdebtor has, by fraud or force, prevented the execution of a decree or order with the period of limitation, the court may, on the applic ation of the judgementcreditor made after the expiry of the said period ex tend the period for execution of the de cree or order:
PROVIDED that such application is made within one year from the date of the discovery of the fraud or the cessation of force, as the case may be."
3. It is also important to refer to the provisions of Article 56 of PartIII of the Schedule of Limitation Act which provides that limitation period for filing the suit for declaring the forgery of an instrument issued or registered is three years from the date of knowledge of registration of the instrument.
Section 90 of the Evidence Act reads as under : "90. Presumption as to certain documents 20 years old (1) Where any document, purporting or Page 19 of 30 HC-NIC Page 19 of 30 Created On Sat Aug 27 00:36:22 IST 2016 C/CRA/405/2015 CAV JUDGMENT proved to be twenty years old, is produced from any custody which the Court in the particular case considers proper, the Court may presume that the signature and every other part of such document, which purports to be in the handwriting of any particular person, is in that person's handwriting, and, in the case of a document executed or attested, that it was duly executed and attested by the person by whom it purports to be executed or attested.
(2) Where any such document as is referred to in subsection (1) was registered in accordance with the law relating to registration of documents and a duly certified copy thereof is produced, the Court may presume that the signature and every other part of such document which purports to be in the handwriting of any particular person, is in that person's handwriting and in the case of a document executed or attested, that it was duly executed and attested by the person by whom it purports to have been executed or attested."
Section 55 of the Transfer of Property Act reads as under: "SECTION 55 : Rights and liabilities of buyer and seller In the absence of a contract to the con- trary, the buyer and the seller of immov- able property respectively are subject to the liabilities, and have the rights, mentioned in the rules next following, or such of them as are applicable to the property sold :
Page 20 of 30HC-NIC Page 20 of 30 Created On Sat Aug 27 00:36:22 IST 2016 C/CRA/405/2015 CAV JUDGMENT (1) The seller is bound-
(a) to disclose to the buyer any materi-
al defect in the property or in the seller's title thereto of which the seller is, and the buyer is not, aware, and which the buyer could not with or- dinary care discover;
(b) to produce to the buyer on his re- quest for examination all documents of title relating to the property which are in the seller's possession or power;
(c) to answer to the best of his inform- ation all relevant questions put to him by the buyer in respect to the property or the title thereto ;
(d) on payment or tender of the amount due in respect of the price, to execute a proper conveyance of the property when the buyer tenders it to him for execu- tion at a proper time and place ;
(e) between the date of the contract of sale and the delivery of the property, to take as much care of the property and all documents of title relating thereto which are in his possession' as an owner of ordinary prudence would take of such property and documents ;
(f) to give, on being so required, the buyer, or such person as he directs, such possession of the property as its nature admits ; and
(g) to pay all public charges and rent accrued due in respect of the property up to the date of the sale, the interest on all incumbrances on such property due on such date, and, except where the property is sold subject to incum- brances, to discharge all incumbrances on the property then existing.
Page 21 of 30HC-NIC Page 21 of 30 Created On Sat Aug 27 00:36:22 IST 2016 C/CRA/405/2015 CAV JUDGMENT (2) The seller shall be deemed to con- tract with the buyer that the interest which the seller professes to transfer to the buyer subsists and that he has power to transfer the same: The benefit of the contract mentioned in this rule shall be annexed to, and shall go with, the interest of the transferee as such, and may be enforced by every person in whom that interest is for the whole or any part thereof from time to time ves- ted.
Provided that, where the sale is made by a person in a fiduciary character, he shall be deemed to contract with the buyer that the seller has done no act whereby the property is incumbered or whereby he is hindered from transferring it.
The benefit of the contract mentioned in this rule shall be annexed to, and shall go with, the interest of the transferee as such, and may be enforced by every person in whom that interest is for the whole or any part thereof from time to time vested.
(3) Where the whole of the purchase- money has been paid to the seller, he is also bound to deliver to the buyer all documents of title relating to the prop- erty which are in the seller's posses- sion or power :
Provided that, (a) where the seller re- tains any part of the property comprised in such documents, he is entitled to re- tain them all, and (b) where the whole of such property is sold to different buyers, the buyer of the lot of greatest value is entitled to such documents. But in case (a) the seller, and in case (b) the buyer, of the lot of greatest value, is bound, upon every reasonable request Page 22 of 30 HC-NIC Page 22 of 30 Created On Sat Aug 27 00:36:22 IST 2016 C/CRA/405/2015 CAV JUDGMENT by the buyer, or by any of the other buyers, as the case may be, and at the cost of the person making the request, to produce the said documents and fur- nish such true copies thereof or ex- tracts therefrom as he may require; and in the meantime, the seller, or the buy- er of the lot of greatest value, as the case may be, shall keep the said docu- ments safe, uncancelled and undefaced, unless prevented from so doing by fire or other inevitable accident. (4) The seller is entitled-
(a) to the rents and profits of the property till the ownership thereof passes to the buyer;
(b) where the ownership of the property has passed to the buyer before payment of the whole of the purchase-money, to a charge upon the property in the hands of the buyer, any transferee without con-
sideration or any transferee with notice of the non-payment, for the amount of the purchase-money, or any part thereof remaining unpaid, and for interest on such amount or part from the date on which possession has been delivered. (5) The buyer is bound-
(a) to disclose to the seller any fact as to the nature or extent of the seller's interest in the property of which the buyer is aware, but of which he has reason to believe that the seller is not aware, and which materially in- creases the value of such interest;
(b) to pay or tender, at the time and place of completing the sale, the pur- chase-money to the seller or such person as he directs:
Page 23 of 30HC-NIC Page 23 of 30 Created On Sat Aug 27 00:36:22 IST 2016 C/CRA/405/2015 CAV JUDGMENT provided that, where the property is sold free from incumbrances, the buyer may retain, out of the pur- chase-money, the amount of any in- cumbrances on the property existing at the date of the sale, and shall pay the amount so retained to the persons entitled thereto;
(c) where the ownership of the property has passed to the buyer, to bear any loss arising from the destruction, in-
jury or decrease in value of the prop- erty not caused by the seller ;
(d) where the ownership of the property has passed to the buyer, as between him- self and the seller, to pay all public charges and rent which may become pay- able in respect of the property, the principal moneys due on any incumbrances subject to which the property is sold, and the interest thereon afterwards ac- cruing due.
(6) The buyer is entitled-
(a) where the ownership of the property has passed to him, to the benefit of any improvement in, or increase in value of, the property, and to the rents and profits thereof;
(b) unless he has improperly declined to accept delivery of the property, to a charge on the property, as against the seller and all persons claiming under him, to the extent of the seller's in- terest in the property, for the amount of any purchase-money properly paid by the buyer in anticipation of the deliv- ery and for interest on such amount; and, when he properly declines to accept the delivery, also for the earnest (if any) and for the costs (if any) awarded Page 24 of 30 HC-NIC Page 24 of 30 Created On Sat Aug 27 00:36:22 IST 2016 C/CRA/405/2015 CAV JUDGMENT to him of a suit to compel specific per- formance of the contract or to obtain a decree for its rescission. An omission to make such disclosures as are men- tioned in this section, paragraph (1), clause (a), and paragraph (5), clause
(a), is fraudulent.
4. The Honourable Apex Court while laying down the principle of the date of knowledge with regard to registered document and its burden on the plaintiff has categorically held in the case of Smt. Dilboo (Dead) by Lrs. & Ors. Vs. Smt. Dhanraji (Dead) and Ors. Reported in 2000 (7) SCC 702 as under;
"The period of 12 years has to run from the date of knowledge by the Plaintiff of such transfer. It is always for the party who files the Suit to show that the Suit is within time. Thus in cases where the suit is filed beyond the period of 12 years, the Plaintiff would have to aver and then prove that the Suit is within 12 years of his/her knowledge. In the absence of any averment or proof, to show that the suit is within time, it is the Plaintiff who would fail. Whenever a document is registered the date of registration becomes the date of deemed knowledge. 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 period of limitation by merely claiming that he had no knowledge."Page 25 of 30
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5. The Honourable Apex Court in the case of N.V.Srinivasa Murthy and Ors vs. Mariyamma (dead) by L.Rs reported in AIR 2005 SC 2897 while rejecting the plaint as the same was clearly barred by limitation has held that, '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 reconveyance of the property on return of borrowed amount.' It is further held that, "in our view, the trial court was right in coming to the conclusion that accepting all averments in the plaint, the suit seems to be barred by limitation. On critical examination of the plaint as discussed by us above, the suit seems to be clearly barred on the facts stated in the plaint itself."
6. This Court in the case of Becharbhai Zaverbhai Patel and Anr. vs. Jashbhai Shivabhai Patel and Ors., reported in 2013(1) GLR 398 has held as under : "It is not disputed that while considering application under Order 7, Rule 11(d) of the Code of Civil Procedure, the Court is required to consider the averments in the plaint and the supporting documents produced along with plaint. However, it Page 26 of 30 HC-NIC Page 26 of 30 Created On Sat Aug 27 00:36:22 IST 2016 C/CRA/405/2015 CAV JUDGMENT cannot be disputed that if on the face of it and even considering the averments made in the plaint, it is found that the suit is clearly barred of law of limitation, the plaint can be rejected in exercise of powers under Order 7, Rule 11(d) of the Code of Civil Procedure. Even considering the decision of the Hon'ble Supreme Court in the case of N. V. Srinivasan Murthy v. Mariyamma (Dead) by Proposed L.Rs., reported in AIR 2005 SC 2897 as well as decision of the Hon'ble Supreme Court in the case of Dilboo (Smt.) (Dead) by L.Rs., [2000 (7) SCC 702] the plaint can be rejected in exercise of powers under Order 7, Rule 11(d) of the Code of Civil Procedure if it is found that even accepting all the averments made in the suit, it is found therefore, the suit is barred by law of limitation. Considering the above proposition of law laid down by the Hon'ble Supreme Court, it is required to be considered whether considering facts and circumstances of the present case and even considering averments made in the plaint and even accepting all the averments made in the plaint as they are, whether the suit is barred by law of limitation or not?"
7. In the aforesaid decision it is also held that, mere clever drafting in the plaint and by such vague averments and the pleading the cause of action in the plaint, the suit which is otherwise barred by law of limitation cannot be brought within a period of limitation.
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8. It is undisputed fact that the Sale Deeds in question are way back of the year 1982 and the suits are filed in the year 2013, which is after a period of 31 years. It is pointed out by the petitioner and not disputed by the respondent No.1 that a previous suit being Regular Civil Suit No.143 of 2004 was filed by the respondent No.1 alongwith other respondents which was also dismissed for default way back in 2009. These facts clearly reflect that respondent No.1 was in knowledge about the Sale Deeds in question from the year 2004 which is 09 years prior to the date of filing of the Civil Suit Nos.67 and 68 of 2013. In such situation the date of knowledge though not expressly mentioned in the plaint, even if taken to be of year 2004, the present suits are clearly time barred as per the provisions of Article 56 of PartIII of the Schedule of Limitation Act as such suits for declaration of forgery of any instrument could have been brought within a period of 03 years only. Hence the suits are grossly time barred. Even if it is assumed that fraud was played upon respondent No.1 in connection with the Sale Deeds in question then also the suits cannot be allowed on the ground of forgery after a long period of 31 years, when Sale Deeds in question were registered, Page 28 of 30 HC-NIC Page 28 of 30 Created On Sat Aug 27 00:36:22 IST 2016 C/CRA/405/2015 CAV JUDGMENT mutation entries were made. Despite such registration of Sale Deeds and mutation entries made at relevant point of time the respondent No.1 did not raise any dispute about the fraud for the period of 31 years and suit filed after the period of 31 years is hopelessly time barred.
9. In view of above observations and discussion, both the Civil Revision Applications are allowed and the impugned order dated 22.9.2015 passed by the learned Fourth Additional Civil Judge, Kalol, below applications Ex.21 and 20 in the Civil Suit Nos.67 and 68 of 2013 is quashed and set aside. The applications at Ex.20 and 21 submitted by the present petitioner to reject the plaints in exercise of powers under Order 7 Rule 11(d) of the Code of Civil Procedure are hereby allowed and consequently the plaints are ordered to be rejected as being barred by law of limitation.
10. Rule is made absolute to the aforesaid extent. No order as to costs.
(Z.K.SAIYED, J.) KKS After pronouncement of the judgment Mr.Milan Patel, learned counsel has requested to stay Page 29 of 30 HC-NIC Page 29 of 30 Created On Sat Aug 27 00:36:22 IST 2016 C/CRA/405/2015 CAV JUDGMENT this order for a period of six weeks. Mr.Jigar Patel, learned counsel has objected to such request. Looking to the facts of the case and circumstances of the case, operation and implementation of present order shall stand stayed for a period of three weeks from today.
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