Gujarat High Court
Ramaji Jivaji vs Lh Of Late Lasiben Shivaji Thakor W/O ... on 23 August, 2023
Author: Ashutosh Shastri
Bench: Ashutosh Shastri
NEUTRAL CITATION
C/FA/1745/2023 CAV JUDGMENT DATED: 23/08/2023
undefined
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/FIRST APPEAL NO. 1745 of 2023
With
CIVIL APPLICATION (FOR STAY) NO. 1 of 2023
In
R/FIRST APPEAL NO. 1745 of 2023
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE ASHUTOSH SHASTRI : Sd/-
and
HONOURABLE MR. JUSTICE DIVYESH A. JOSHI : Sd/-
=====================================================
1 Whether Reporters of Local Papers may YES
be allowed to 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 judgment ? NO
4 Whether this case involves a
substantial question of law as to the
interpretation of the Constitution of NO
India or any order made thereunder ?
=====================================================
RAMAJI JIVAJI
Versus
LH OF LATE LASIBEN SHIVAJI THAKOR W/O HIRAJI THAKOR
=====================================================
Appearance:
MR YASHKUMAR S PANDYA for the Appellant(s) No. 1,2,3
for the Defendant(s) No. 1,2,3
MR ANKITKUMAR B PATEL for the Defendant(s) No. 3.2
NOTICE SERVED for the Defendant(s) No.
1.1,2.1,3.1,3.3,3.4,3.5,3.6,3.7,4
=====================================================
CORAM:HONOURABLE MR. JUSTICE ASHUTOSH SHASTRI
and
HONOURABLE MR. JUSTICE DIVYESH A. JOSHI
Page 1 of 38
Downloaded on : Sun Sep 17 02:10:43 IST 2023
NEUTRAL CITATION
C/FA/1745/2023 CAV JUDGMENT DATED: 23/08/2023
undefined
Date : 23/08/2023
CAV JUDGMENT
(PER : HONOURABLE MR. JUSTICE DIVYESH A. JOSHI)
1. By way of present First Appeal under Section 96 of the Civil Procedure Code, 1908 (hereinafter referred to as "the Code" for short), the appellants - original plaintiffs have challenged the judgment and decree dated 03.12.2022 passed by the learned 2nd Additional Senior Civil Judge, Ahmedabad (Rural) in Special Civil Suit No.51/2021, by which, the plaint filed by the appellants - original plaintiffs came to be dismissed under Order 7, Rule 11(d) of the Code.
2. The brief facts leading to the filing of the present appeal are as under, 2.1 The land bearing Survey Nos.285/1/1, 285/1/2 and 690/1 situated in Village :
Vinzol, Taluka : Vatva, District :
Ahmedabad were belonging to the forefather of the appellants viz., Jivaji Shivaji and on sad demise of said Jivaji Shivaji, name of the father of the appellants and the respondent nos.1 and 2 came to be mutated in the revenue record vide Entry No.4360 on 22.05.1973.
2.2 It is stated that taking advantage of illiteracy and unawareness of the father of the appellant and the re nos.1 and 2, sale Page 2 of 38 Downloaded on : Sun Sep 17 02:10:43 IST 2023 NEUTRAL CITATION C/FA/1745/2023 CAV JUDGMENT DATED: 23/08/2023 undefined deed came to be executed in the year 1980 in favour of Vitthalbhai Lakhabhai and Ambalal Vitthalbhai by forging signature of the father of the appellant and based on the type copy of the sale deed, Entry No.5318 came to be mutated in the revenue records. Thereafter, the land in question has been sold to the respondent no.4 herein.
2.2 It is stated that the appellants came to know about the mutation of such entry in the year 2008 and, hence after taking legal advice, they have challenged such entry before the learned Deputy Collector, Viramgam by filing RTS Appeal No.89/2008.
As there was delay in filing said appeal, separate application for condonation of delay was also filed. It is stated that after filing of RTS Appeal, sale deed got registered before the concerned Registrar on the basis of the execution of the registered sale deed.
2.3 It is stated that learned Deputy Collector, vide order dated 13.01.2010, rejected the said Appeal. Against which, the appellants have approached the learned Collector by way of preferring RTS Appeal, however, the learned Collector rejected the said appeal by an order dated 05.01.2018. Against the Page 3 of 38 Downloaded on : Sun Sep 17 02:10:43 IST 2023 NEUTRAL CITATION C/FA/1745/2023 CAV JUDGMENT DATED: 23/08/2023 undefined rejection of those orders, the appellants have preferred Revision Application No.MVV/ HKP/AMD/ 132/2017 before the learned Special Secretary (Revenue Department), Sola, Ahmedabad (hereinafter referred to as "learned SSRD" for short).
2.4 It is stated that Revision Application filed by the appellants came to be rejected by the learned SSRD by an order dated 05.01.2018. It is stated that however while rejecting the said application filed by the appellants, it is specifically observed by the learned SSRD that the civil rights of the parties can be adjudicated by the competent civil court.
2.5 It is stated that after taking legal advice, the appellants have instituted suit being Regular Civil Suit No.51/2021 before the learned Civil Court, Ahmedabad (Rural) at Mirzapur, Ahmedabad on 19.02.2021 for declaration, permanent injunction, partition and cancellation of the sale deed executed in favour of the private respondents.
2.6 It is stated that on filing of such suit, notice was issued upon the original defendants and they appeared through advocate and filed their written statements to the suit.
Page 4 of 38 Downloaded on : Sun Sep 17 02:10:43 IST 2023NEUTRAL CITATION C/FA/1745/2023 CAV JUDGMENT DATED: 23/08/2023 undefined 2.7 It is stated that after serving the copy of the notice, the original defendants have appeared through their respective advocates. The original defendant no.3/2, Ambalal Patel had preferred an application, Exh.19 under Order 7, Rule 11 of the Code for rejection of plaint on 15.06.2022. Similarly, the original defendant no.4 had also preferred an application, Exh.16 under Order 7, Rule 11 of the Code for rejection of plaint and without properly considering the facts of the case and evidence available on record, the learned 2nd Additional Senior Civil Judge, Ahmedabad, by impugned judgment and order dated 03.12.2022 passed below Exh.19 & 16, rejected the plaint as required under Order 7, Rule 11(d) of the Code, which led to filing of the present First Appeal.
3. Heard learned advocate, Mr. Yashkumar Pandya appearing for the appellants and learned advocate, Mr. Ankitkumar Patel appearing for the respondent no.3.2. Though served, none appears for the rest of the respondents.
4. Learned advocate, Mr. Yashkumar Pandya appearing for the appellants have submitted that the judgment and order passed by the learned Court below is vexatious, capricious, erroneous, unjust, improper and against the evidence Page 5 of 38 Downloaded on : Sun Sep 17 02:10:43 IST 2023 NEUTRAL CITATION C/FA/1745/2023 CAV JUDGMENT DATED: 23/08/2023 undefined available on record as also in contravention of the law laid down by the Hon'ble Supreme Court in numerous case laws, therefore, the same requires to be quashed and set aside by allowing the present first appeal. Learned advocate submitted that in the year 2008, the appellants
- original plaintiffs came to know about the mutation of entry in the revenue record in land in question on the basis of the alleged sale deed, which was not registered and based on type copy of the sale deed, which was produced by the respondent nos.1 to 3, such entry was mutated and as soon as the appellants - original plaintiffs came to know about the mutation of such entry, immediately they have challenged the said entry by filing RTS Appeal before the learned Deputy Collector, however, the said RTS Appeal came to be rejected, against which, the appellants have approached the learned Collector but the said RTS Appeal also came to be rejected, which led to filing of Revision Application before learned SSRD, where the learned SSRD rejected the said Revision Application filed by the appellants however while passing said order, the learned SSRD has specifically observed that the dispute involved in the matter pertains to civil in nature and the competent civil court has got jurisdiction to decide the civil rights of the parties and, Page 6 of 38 Downloaded on : Sun Sep 17 02:10:43 IST 2023 NEUTRAL CITATION C/FA/1745/2023 CAV JUDGMENT DATED: 23/08/2023 undefined therefore, the suit was filed by the appellant before the learned Court below on 19.02.2021, which was well within the time limit of the order of learned SSRD. It is, therefore, submitted that by no stretch of imagination, it can be construed that the suit was filed belatedly and it was barred by law of limitation and entire suit is dismissed by the learned Court below on the said premise and, therefore, the present appeal is preferred by the appellants before this Court. Learned advocate submitted that it is an admitted position of fact that the cause of action to file suit before the competent court would be started to be commenced from the date of rejection of the revision application filed before the learned SSRD, therefore immediately within a period of three years, the suit was preferred before the competent court, which has jurisdiction to try the suit involving civil dispute between the parties. Learned advocate submitted that the learned Court below ought to have considered before rejecting the suit at threshold that the appellants - original plaintiffs have got new cause of cause upon the reasons assigned by the revenue authorities and the appellants - original plaintiffs have acted bonafidely and as per the legal advice given by the concerned persons, instead of filing suit before the Page 7 of 38 Downloaded on : Sun Sep 17 02:10:43 IST 2023 NEUTRAL CITATION C/FA/1745/2023 CAV JUDGMENT DATED: 23/08/2023 undefined competent civil court, they have approached the concerned revenue authorities and challenged the revenue entries. It is submitted that at the time of disposing of the revenue proceedings by an order dated 04.01.2018, the learned SSRD has made specific observation to approach the civil court to adjudicate the issue involved in the matter and pursuance thereto, suit was filed well within time i.e. on 19.02.2021.
5. Learned advocate submitted that entry came to be mutated in the revenue record without issuance of notice to the original owners (i.e. forefather of the appellants - original plaintiffs) under Section 135D of the Bombay Land Revenue Code and in absence of issuance of such notice as required under the law, entry can never be certified. Learned advocate submitted that the appellants - original plaintiffs had filed RTS proceeding before the revenue authority in the year 2008 and at that point of time, only type copy of the sale deed was in existence as the sale deed was registered in the year 2009 by the concerned officer of the Registrar and after submission of the certificate under the provision of Urban Land Ceiling Act and that too by forging signature of the father of the appellants. It is submitted that the appellant admitted in the present case that the notice had not been issued and served Page 8 of 38 Downloaded on : Sun Sep 17 02:10:43 IST 2023 NEUTRAL CITATION C/FA/1745/2023 CAV JUDGMENT DATED: 23/08/2023 undefined to the owner of the land as required under Section 135D of the BLRC before passing an order of certifying it and, therefore, the appellants
- original plaintiffs were not in a position to know about the execution of the sale deed as it was not registered in the office till 2009 and in absence of registered sale deed, it cannot be said that there was delay on the part of the appellants to file suit belatedly. Learned advocate submitted that it is also evident from the evidence available on record that as per the case of the original defendants, the so-called sale deed was executed in the year 1980, which was registered in the year 2009 and that too, after the RTS Appeal was preferred by the appellants before the revenue authority and the said document itself goes to show that the appeal was preferred in the year 2008 before the revenue authority and sale deed was registered by the concerned authority in the year 2009 and at that relevant point of time, legal advice was given to the appellants - original plaintiffs that entries mutated in the revenue records are nullity and void ab initio and, therefore, instead of preferring suit, those entries are required to be challenged before the Deputy Collector by way of preferring RTS Appeal and, therefore, they have challenged such proceedings initially before the learned Additional Page 9 of 38 Downloaded on : Sun Sep 17 02:10:43 IST 2023 NEUTRAL CITATION C/FA/1745/2023 CAV JUDGMENT DATED: 23/08/2023 undefined Collector and reached upto the learned SSRD, where the learned SSRD has specifically made observation that the civil right is involved in the matter and said dispute can be resolved by the civil court and, therefore immediately within a period of three years, suit had been preferred and the said fact ought to have been taken into consideration by the learned Judge at the time of deciding an application filed under Order 7, Rule 11(d) of the Code by the respondents - original defendants, however, the learned Judge failed to consider the material and evidence available on record in its true spirit and by giving undue weightage to the non- important material and conveniently discarded the important documents, upon which, the appellants - original plaintiffs have put reliance and by doing so, the learned Judge has committed grave error, which is required to be rectified by allowing the present appeal.
6. Learned advocate further submits that it is settled proposition of law that when the questions of law and fact are involved in the matter, in that event, instead of deciding the application filed under Order 7, Rule 11 of the Code, the Hon'ble Court has to give an opportunity to the parties to lead evidence and in the facts of the present case, as stated above, though in the present case, mix question Page 10 of 38 Downloaded on : Sun Sep 17 02:10:43 IST 2023 NEUTRAL CITATION C/FA/1745/2023 CAV JUDGMENT DATED: 23/08/2023 undefined of law and facts are involved in the matter, without giving an opportunity to lead evidence, the application filed under Order 7, Rule 11(d) of the Code cannot be decided, despite the said fact, the impugned order came to be passed, which ought not to have been done without permitting the parties to lead evidence. Learned advocate, Mr. Pandya submitted that considering the above factual aspects as well as settled legal proposition of law, this is a fit case, wherein interference of this Court is needed and this Hon'ble Court may be pleased to allow the present First Appeal by quashing and setting aside the judgment and order passed by the learned Court below.
7. On the other hand, learned advocate, Mr. Ankitkumar Patel appearing for the respondent no.3.2 submitted that the judgment and order passed by the learned Court below is just, fair, reasonable and based upon sound principle of law and, therefore, does not require any interference at the hands of this Hon'ble Court at this juncture. Learned advocate submitted that it is an admitted position of fact that forefather of the appellants - original plaintiffs have sold the land in question by executing registered sale deed to the forefather of the defendants in the year 1980 and, thereafter in the year 1983, entry was mutated Page 11 of 38 Downloaded on : Sun Sep 17 02:10:43 IST 2023 NEUTRAL CITATION C/FA/1745/2023 CAV JUDGMENT DATED: 23/08/2023 undefined in the revenue record on the strength of the said sale deed. Learned advocate has fairly conceded that it is true that the sale deed was registered in the year 2009 and on the strength of the sale deed executed between the parties in the year 1980, an Entry No.5318 was mutated in the revenue record on 07.09.1983. Learned advocate submitted that in fact, the said survey numbers are belonging to forefather of the appellants - original plaintiffs, Mr. Shivaji Dajiji and on the sad demise of said Shivaji Dajiji, legal heirs of Shivaji Dajiji became the owner of the land in question and the said entry was mutated in the revenue record by way of Entry No.4360 on 22.05.1970 and, thereafter, the father of the appellants - original plaintiffs have sold the land in the year 1980 by executing sale deed.
8. Learned advocate submitted that the father of the appellants had sold the land in question by executing sale deed in favour of Vitthalbhai Lakhabhai and Ambalal Vitthalbhai after receiving the amount of sale consideration and Entry No.5314 to that effect was mutated in the record of rights on 29.02.1983 and in pursuance to the said transaction, the original owner and the forefather of the appellants got the possession of the land in question and became the owner of the land as a tenant as per the Page 12 of 38 Downloaded on : Sun Sep 17 02:10:43 IST 2023 NEUTRAL CITATION C/FA/1745/2023 CAV JUDGMENT DATED: 23/08/2023 undefined provision of the Tenancy Act and, therefore before executing the registered sale deed, they have to obtain permission from the revenue authorities and, hence, they have preferred an application before the office of the Deputy Collector, Viramgam, Ahmedabad with a request to grant permission to sale the said land in question to Vitthalbhai Lakhabhai and others. It is submitted that after considering and appreciating the documents produced on record, the learned Deputy Collector, Viramgam has granted permission to the forefather of the appellants with certain conditions and Entry No.5314 to that effect was also mutated in the record of rights. Thereafter, the said Vitthalbhai Lakhabhai and others had produced type copy of the sale deed before the office of the Talati-cum-Mantri, Vinzol and after verifying the veracity of the documents, Entry No.5328 was mutated in the record on 07.09.1983 by the office of the Talati-cum-Mantri. It is submitted that in the operative part of the abstract of Village Form No.6, it is clearly stated that notice was issued, therefore after fulfilling necessary and requisite requirement of statutory provision, entry was made and certified by the revenue authority. Therefore, the arguments canvassed by learned advocate for the appellants that the notice under Section Page 13 of 38 Downloaded on : Sun Sep 17 02:10:43 IST 2023 NEUTRAL CITATION C/FA/1745/2023 CAV JUDGMENT DATED: 23/08/2023 undefined 135D of the Bombay Land Revenue Code was not served to the appellants, is against the evidence available on record and, therefore, has no legs to stand for a moment.
9. Learned advocate has forcefully submitted that the appellants have challenged the aforesaid entries by way of preferring only one RTS Appeal before the learned Deputy Collector, Viramgam but in fact, aforesaid three entries were certified and came into effectuation on different dates and, therefore, three different RTS Appeals ought to have been filed by the appellants but instead of preferring three different RTS Appeals, they have preferred only one RTS Appeals being RTS Appeal No.89/2008 on 30.04.2008 before the office of the learned Deputy Collector, Viramgam challenging all three entries, which were mutated and certified on different dates. It is submitted that as there was delay in preferring the said RTS Appeal, separate application for condonation of delay was also preferred along with the said appeal. It is submitted that if the Hon'ble Court would cursorily make a glance to the contents of the said application for condonation of delay then, entire picture would be crystallized. It is clearly stated in the delay application that the sale deed was executed in the year 1980 and entry to that effect was mutated in the record Page 14 of 38 Downloaded on : Sun Sep 17 02:10:43 IST 2023 NEUTRAL CITATION C/FA/1745/2023 CAV JUDGMENT DATED: 23/08/2023 undefined of rights in the year 1983, therefore, it can safely be said that as the entry was mutated in the record in the year 1983, since then it was well within the knowledge of the appellants and, hence, date of cause of action would be started to be commenced from the date of certification of the mutation of entry in the revenue record.
10. Learned advocate has further submitted that it is settled proposition of law that the cause of action would start to be commenced from the date of knowledge and admittedly, the said entry was mutated in the year 1983 and the said fact was within the knowledge of the original appellants. Learned advocate has submitted that admittedly, RTS Appeal was preferred before the learned Deputy Collector in the year 2008 and the suit was filed in the year 2021, therefore admittedly, they have kept mum and remained silent for more than 13 years and, therefore, the suit is barred by law of limitation and, therefore, rightly rejected by the learned Civil Judge and, therefore, no interference is required to be made by this Hon'ble Court. Learned advocate has further submitted that for the sake of argument without admitting it, it is assumed at this juncture that the appellants - original plaintiffs have at all not aware about the execution of the sale deed upto the year 2008 but the said sale deed was registered by Page 15 of 38 Downloaded on : Sun Sep 17 02:10:43 IST 2023 NEUTRAL CITATION C/FA/1745/2023 CAV JUDGMENT DATED: 23/08/2023 undefined the office of the concerned Registrar in the year 2009 and the said fact was also brought to the notice of the appellant as it is settled proposition of law that the registration of the document itself would be considered as 'deemed date' from the date of registration and on the strength of the registered sale deed, entry was made in the revenue record, therefore immediately within a span of three years, the suit was required to be preferred challenging the execution of the said registered sale deed. Admittedly, the present suit was preferred by the appellants - original plaintiffs in the year 2021 knowingfully well that type copy of the sale deed was produced before the revenue authority in the year 1980 and on the strength of the execution of the said sale deed, entry to that effect was mutated in the record in the year 1983 and all those facts have been narrated in great detailed by the appellants - plaintiffs before the revenue authority.
11. Learned advocate has, therefore, submitted that if this Hon'ble Court would consider that the appellants - original plaintiffs have come to know about the execution of the registered sale deed in the year 2009, in that event, the deemed date of knoweldge would actually be considered as the date of registration of the sale deed i.e. on 30.01.2009 and immediately within a Page 16 of 38 Downloaded on : Sun Sep 17 02:10:43 IST 2023 NEUTRAL CITATION C/FA/1745/2023 CAV JUDGMENT DATED: 23/08/2023 undefined period of three years, the suit was required to be preferred but admittedly, the suit was preferred in the year 2021 and, therefore, there was gross delay of 13 years in preferring the suit. Learned advocate, therefore, submitted that the suit cannot be entertained solely on the basis of the principle of law of limitation and there was statutory ban to entertain the suit and, hence, the learned Court below has rightly considered the application preferred by the original defendants and, therefore, the judgment and order passed by the learned Court below is just, fair, reasonable and does not require any interference at the hands of this Hon'ble Court.
12. We have heard learned advocates appearing for the parties. We have also perused the impugned order of the learned Court below dismissing the suit by allowing the application preferred under Order 7, Rule 11 of the Code. We have considered the averments made in the plaint.
13. We have gone through the material and evidence on record available on record and before dwelling into the issue involved in the matter, we would like to rely and reproduce certain facts available on record, which are as under, 13.1 The forefather of the appellants - original plaintiffs are the occupant and owners of the land in question and Entry No.4360 was Page 17 of 38 Downloaded on : Sun Sep 17 02:10:43 IST 2023 NEUTRAL CITATION C/FA/1745/2023 CAV JUDGMENT DATED: 23/08/2023 undefined mutated in the name of the father of the appellants in the year 1970 after the sad demise of forefather viz., Shivaji Jivaji. The father of the original plaintiffs had executed the sale deed by taking entire amount of sale consideration from Vitthalbhai Lakhabhai and Ambalal Vitthalbhai and sale deed was executed and pursuant to which, Entry No.5318 was mutated in the revenue record on 04.03.1980 on the strength of production of type copy of sale deed.
13.2 Upon coming to know about mutation of such entry in the year 2008, the original plaintiffs had filed RTS proceeding before the learned Deputy Collector, Viramgam in the year 2008 along with an application for condonation of delay and challenged the entry mutated in the year 1983.
13.3 The sale deed executed between the parties has been registered in the year 2009 by the office of the Registrar.
13.4 The learned Deputy Collector, Viramgam has rejected RTS Appeal preferred by the original plaintiffs on 13.01.2010. 13.5 The original plaintiffs challenged the said order before the Collector by way of preferring Appeal under the provision of Section 108(5) of the Bombay Land Revenue Page 18 of 38 Downloaded on : Sun Sep 17 02:10:43 IST 2023 NEUTRAL CITATION C/FA/1745/2023 CAV JUDGMENT DATED: 23/08/2023 undefined Code, which was also dismissed by the Collector vide order dated 12.03.2013. 13.6 The appellants original plaintiffs carried the said orders before the learned SSRD by filing Revision application, however, the learned SSRD has disposed of the said Revision Application preferred by the original plaints on 05.01.2018. However the original plaintiffs have not challenged the orders of the Deputy Collector, Collector and the learned SSRD before any higher authority. In short, the order passed by the learned SSRD has attained finality. 13.7 On 19.02.2021, suit was preferred, wherein notice was issued, which was duly served upon the original defendants, who appeared through their advocates. Thereafter, an application under Order 7, Rule 11 of the Code was prepared, which was allowed by the learned Court below on 03.12.2022 and the said judgment and order has been assailed in the present First Appeal.
14. At the outset, it is required to be noted that the suit was instituted by the appellants - original plaintiffs for declaration and permanent injunction and cancellation of the sale deed. It is also settled proposition of law that at the time of deciding the application preferred under Order 7, Rule 11 of the Code, Page 19 of 38 Downloaded on : Sun Sep 17 02:10:43 IST 2023 NEUTRAL CITATION C/FA/1745/2023 CAV JUDGMENT DATED: 23/08/2023 undefined the Court has got valuable right to look into and appreciate the averments made in the plaint and the documents annexed with the suit.
15. At this stage, we would like to refer to the provision of Order 7, Rule 11 of the Code, which reads as under, "ORDER VII
11. Rejection of plaint.-The plaint shall be rejected in the following cases:--
(a) where it does not disclose a cause of action;
(b) where the relief claimed is undervalued, and the plaintiff, on being required by the court to correct the valuation within a time to be fixed by the court, fails to do so;
(c) where the relief claimed is properly valued, but the plaint is written upon paper insufficiently stamped, and the plaintiff, on being required by the court to supply the requisite stamp paper within a time to be fixed by the Court, fails to do so;
(d) where the suit appears from the statement in the plaint to be barred by any law;
(e) where it is not filed in duplicate;
(f) where the plaintiff fails comply with the provision of Rule 9.
Provided that the time fixed by the court for the correction of the valuation or supplying of the requisite stamp papers shall not be extended unless the court, for reasons to be recorded, is satisfied that the plaintiff was prevented by any cause of Page 20 of 38 Downloaded on : Sun Sep 17 02:10:43 IST 2023 NEUTRAL CITATION C/FA/1745/2023 CAV JUDGMENT DATED: 23/08/2023 undefined an exceptional nature from correcting the valuation or supplying the requisite stamp papers, as the case may be within the time fixed by the court and that refusal to extend such time would cause grave injustice to the plaintiff."
16. On the strength of above facts and the provision of the Code, it can be safely said that by way of registered sale deed of the suit property, the original defendants became the absolute owner of the land in question. On the strength of above stated documents available on record, undisputedly one thing is found out that the appellants - original plaintiffs were aware about the factum of execution of the registered sale deed in the year 2009 and the said fact, they have already disclosed in the revenue proceedings. Even at the time of preferring present First Appeal before this Court, it is candidly accepted by learned advocate for the appellants that under bonafide belief, instead of preferring suit, they have challenged the entry mutated in the revenue record by way of preferring RTS Appeal and the appellants - original plaintiffs were advised to challenge the revenue proceedings only because the sale deed executed between the parties was not registered one and on the strength of the said sale deed, entry was mutated, therefore, entry itself is null and void and requires to be Page 21 of 38 Downloaded on : Sun Sep 17 02:10:43 IST 2023 NEUTRAL CITATION C/FA/1745/2023 CAV JUDGMENT DATED: 23/08/2023 undefined cancelled by the revenue authority and they need not have to challeng the same by filing separate suit, therefore, under legal advice given by the person concerned, they have initiated revenue proceedings instead of preferring suit. On the strength of above said arguments of learned advocates for the original plaintiffs as well as documents available on record, it goes to show that the appellants - original plaintiffs were well aware about the execution of the registered sale deed in the year 2009 and they were also aware about entry mutated in the revenue record in the year 1983 but for the sake of argument without admitting that if it is believed that the appellants - original plaintiffs have come to know about actual cause of action from the date of registration of the sale deed, therefore, it is found out from the record that the sale deed was registered in the year 2009 and the suit was preferred in the year 2021 and in that event, at the most, the appellants - original plaintiffs has got valuable right to challenge the sale deed by way of preferring appropriate suit before the competent court on or before 2012 but admittedly, the suit was preferred in the year 2021 and thus, there was delay on the part of the plaintiffs in preferring the suit and as per the provisions of the law, it is barred by law of limitation and Page 22 of 38 Downloaded on : Sun Sep 17 02:10:43 IST 2023 NEUTRAL CITATION C/FA/1745/2023 CAV JUDGMENT DATED: 23/08/2023 undefined suit cannot be entertained by the Court.
17. At this stage, we would like to put reliance upon the provision of law of limitation, more particularly, Article 54 of the Law of Limitation, which provides that the period of limitation would commence from the date when the cause of action arises and under Article 58, the suit for declaration of title shall be filed within three years of right to sue accrues and it is settled proposition of law that when the document is registered, the date of registration becomes the date of 'deemed knowledge'. In other case, whether the fact would be discovered by due diligence then, the "deemed knowledge" would be attributed to the plaintiffs because the party cannot be allowed to extend the period of limitation by merely claiming that he had no knowledge.
18. At this stage, we would like to put reliance upon the decision of the Hon'ble Supreme Court in case of Dilboo (Smt) (Dead) by Lrs & Ors. Vs. Dhanraj (Smt) (Dead) and Others, reported in (2000) 7 SCC 702, wherein the Hon'ble Supreme Court has succinctly held that where transfer is by registered document, the date of registration becomes date of "deemed knowledge" and since then, such principle is followed. In the present case, the said principle is followed. Admittedly, in the present case, the registered Page 23 of 38 Downloaded on : Sun Sep 17 02:10:43 IST 2023 NEUTRAL CITATION C/FA/1745/2023 CAV JUDGMENT DATED: 23/08/2023 undefined sale deed has been executed in the year 2009 and, therefore at the most, it can be said that the period of limitation would start from 2009 and the suit was required to be preferred within the stipulated time i.e. three years from the date of registered sale deed and after the suit is filed after a period of lapse of three years, in that event, it is required to be dismissed solely on the ground that it is bad by law of limitation.
19. Considering aforesaid provisions of law as well as the factual aspect of the present case, by no stretch of imagination, it can be said that the suit is preferred by the plaintiffs within the period of limitation. For the purpose of considering scope of Order 7, Rule 11 of Code, we deem it fit to put reliance upon some relevant decisions of the Honorable Apex Court, which are as under:-
19.1 In the case of T. Arivandandam v. T.V.Satyapal, reported in (1977) 4 SCC 467, while considering the very same provision i.e. Order 7 Rule 11 of the CPC and the decree of the trial Court in considering such application, this Court in para 5 has observed and held as under:-
"5. We have not the slightest hesitation in condemning the petitioner for the gross abuse of the process of the court repeatedly and unrepentently resorted to. From the statement of the facts found in the judgment of the High Court, it is perfectly plain that the suit now pending before the First Page 24 of 38 Downloaded on : Sun Sep 17 02:10:43 IST 2023 NEUTRAL CITATION C/FA/1745/2023 CAV JUDGMENT DATED: 23/08/2023 undefined Munsif's Court, Bangalore, is a flagrant misuse of the mercies of the law in receiving plaints. The learned Munsif must remember that if on a meaningful - not formal - reading of the plaint it is manifestly vexatious, and meritless, in the sense of not disclosing a clear right to sue, he should exercise his power under Order 7, Rule 11 CPC taking care to see that the ground mentioned therein is fulfilled. And, if clever drafting has created the illusion of a cause of action, nip it in the bud at the first hearing by examining the party searchingly under Order 10, CPC. An activist Judge is the answer to irresponsible law suits....."
19.2 In the case of Church of Christ Charitable Trust and Educational Charitable Society v. Ponniamman Educational Trust, reported in (2012) 8 SCC 706, this Court in paras 13 has observed and held as under:-
"13. While scrutinizing the plaint averments, it is the bounden duty of the trial Court to ascertain the materials for cause of action. The cause of action is a bundle of facts which taken with the law applicable to them gives the Plaintiff the right to relief against the Defendant. Every fact which is necessary for the Plaintiff to prove to enable him to get a decree should be set out in clear terms. It is worthwhile to find out the meaning of the words "cause of action". A cause of action must include some act done by the Defendant since in the absence of such an act no cause of action can possibly accrue."
19.3 In A.B.C. Laminart Pvt. Ltd. v. A.P. Agencies, reported in (1989) 2 SCC 163, this Court explained the meaning of "cause of action" as follows:
"12. A cause of action means every fact, which if traversed, it would be necessary Page 25 of 38 Downloaded on : Sun Sep 17 02:10:43 IST 2023 NEUTRAL CITATION C/FA/1745/2023 CAV JUDGMENT DATED: 23/08/2023 undefined for the plaintiff to prove in order to support his right to a judgment of the court. In other words, it is a bundle of facts which taken with the law applicable to them gives the plaintiff a right to relief against the defendant. It must include some act done by the defendant since in the absence of such an act no cause of action can possibly accrue. It is not limited to the actual infringement of the right sued on but includes all the material facts on which it is founded. It does not comprise evidence necessary to prove such facts, but every fact necessary for the plaintiff to prove to enable him to obtain a decree. Everything which if not proved would give the defendant a right to immediate judgment must be part of the cause of action. But it has no relation whatever to the defence which may be set up by the defendant nor does it depend upon the character of the relief prayed for by the plaintiff."
19.4 In the case of Sopan Sukhdeo Sable v. Assistant Charity Commissioner, reported in (2004) 3 SCC 137 in paras 11 and 12, this Court has observed as under:-
"11. In I.T.C. Ltd. v. Debts Recovery Appellate Tribunal [(1998) 2 SCC 70] it was held that the basic question to be decided while dealing with an application filed under Order 7 Rule 11 of the Code is whether a real cause of action has been set out in the plaint or something purely illusory has been stated with a view to get out of Order 7 Rule 11 of the Code.
12. The trial court must remember that if on a meaningful and not formal reading of the plaint it is manifestly vexatious and meritless in the sense of not disclosing a clear right to sue, it should exercise the power under Order 7 Rule 11 of the Code taking care to see that the ground mentioned therein is fulfilled. If clever drafting has created the illusion of a cause of action, it has to be nipped in the bud at the first Page 26 of 38 Downloaded on : Sun Sep 17 02:10:43 IST 2023 NEUTRAL CITATION C/FA/1745/2023 CAV JUDGMENT DATED: 23/08/2023 undefined hearing by examining the party searchingly under Order 10 of the Code.
19.5 In the case of Madanuri Sri Rama Chandra Murthy v. Syed Jalal, reported in (2017) 13 SCC 174, this Court has observed and held as under:
"7. The plaint can be rejected under Order 7 Rule 11 if conditions enumerated in the said provision are fulfilled. It is needless to observe that the power under Order 7 Rule 11 CPC can be exercised by the Court at any stage of the suit. The relevant facts which need to be looked into for deciding the application are the averments of the plaint only. If on an entire and meaningful reading of the plaint, it is found that the suit is manifestly vexatious and meritless in the sense of not disclosing any right to sue, the court should exercise power under Order 7 Rule 11 CPC. Since the power conferred on the Court to terminate civil action at the threshold is drastic, the conditions enumerated under Order 7 Rule 11 CPC to the exercise of power of rejection of plaint have to be strictly adhered to. The averments of the plaint have to be read as a whole to find out whether the averments disclose a cause of action or whether the suit is barred by any law. It is needless to observe that the question as to whether the suit is barred by any law, would always depend upon the facts and circumstances of each case. The averments in the written statement as well as the contentions of the defendant are wholly immaterial while considering the prayer of the defendant for rejection of the plaint.
Even when the allegations made in the plaint are taken to be correct as a whole on their face value, if they show that the suit is barred by any law, or do not disclose cause of action, the application for rejection of plaint can be entertained and the power under Order 7 Rule 11 CPC can be exercised. If clever drafting of the plaint has created the illusion of a cause of action, the court Page 27 of 38 Downloaded on : Sun Sep 17 02:10:43 IST 2023 NEUTRAL CITATION C/FA/1745/2023 CAV JUDGMENT DATED: 23/08/2023 undefined will nip it in the bud at the earliest so that bogus litigation will end at the earlier stage."
19.6 In the case of Ram Singh v. Gram Panchayat Mehal Kalan, reported in (1986) 4 SCC 364, the Apex Court has observed and held that when the suit is barred by any law, the plaintiff cannot be allowed to circumvent that provision by means of clever drafting so as to avoid mention of those circumstances, by which the suit is barred by law of limitation.
19.7 At this stage, it would be apposite to refer to the judgment in the case of Dahiben (supra). The Supreme Court, while examining the provisions of Articles 58 and 59 of the Limitation Act, 1963 vis-a-vis an application filed under Order VII Rule 11(a) of the CPC seeking rejection of the plaint, has held thus:
"23.13 If on a meaningful reading of the plaint, it is found that the suit is manifestly vexatious and without any merit, and does not disclose a right to sue, the court would be justified in exercising the power under Order VII Rule 11 CPC.
23.14 The power under Order VII Rule 11 CPC may be exercised by the Court at any stage of the suit, either before registering the plaint, or after issuing summons to the defendant, or before conclusion of the trial, as held by this Court in the judgment of Saleem Bhai v. State of Maharashtra. The plea that once issues are framed, the matter must necessarily go to trial was repelled by this Court in Azhar Hussain (supra).
23.15 The provision of Order VII Rule 11 is mandatory in nature. It states that the Page 28 of 38 Downloaded on : Sun Sep 17 02:10:43 IST 2023 NEUTRAL CITATION C/FA/1745/2023 CAV JUDGMENT DATED: 23/08/2023 undefined plaint shall be rejected if any of the grounds specified in clause (a) to (e) are made out. If the Court finds that the plaint does not disclose a cause of action, or that the suit is barred by any law, the Court has no option, but to reject the plaint.
24.1 In Swamy Atmanand v. Sri Ramakrishna Tapovanam, (2005) 10 SCC 51. this Court held:
"24. A cause of action, thus, means every fact, which if traversed, it would be necessary for the plaintiff to prove an order to support his right to a judgment of the court. In other words, it is a bundle of facts, which taken with the law applicable to them gives the plaintiff a right to relief against the defendant. It must include some act done by the defendant since in the absence of such an act, no cause of action can possibly accrue. It is not limited to the actual infringement of the right sued on but includes all the material facts on which it is founded"
(emphasis supplied) 24.2 In T. Arivandandam v. T.V. Satyapal & Anr., (1977) 4 SCC 467. this Court held that while considering an application under Order VII Rule 11 CPC what is required to be decided is whether the plaint discloses a real cause of action, or something purely illusory, in the following words: -
"5. ...The learned Munsiff must remember that if on a meaningful not formal reading of the plaint it is manifestly vexatious, and meritless, in the sense of not disclosing a clear right to sue, he should exercise his power under O. VII, R. 11, C.P.C. taking care to see that the ground mentioned therein is fulfilled. And, if clever drafting has created the illusion of a cause of action, nip it in the bud at the first hearing ..."
(emphasis supplied) Page 29 of 38 Downloaded on : Sun Sep 17 02:10:43 IST 2023 NEUTRAL CITATION C/FA/1745/2023 CAV JUDGMENT DATED: 23/08/2023 undefined 24.3 Subsequently, in I.T.C. Ltd. v. Debt Recovery Appellate Tribunal, (1998) 2 SCC 170, this Court held that law cannot permit clever drafting which creates illusions of a cause of action. What is required is that a clear right must be made out in the plaint.
24.4 If, however, by clever drafting of the plaint, it has created the illusion of a cause of action, this Court in Madanuri Sri Ramachandra Murthy v. Syed Jalal, (2017) 13 SCC 174, held that it should be nipped in the bud, so that bogus litigation will end at the earliest stage. The Court must be vigilant against any camouflage or suppression, and determine whether the litigation is utterly vexatious, and an abuse of the process of the court.
25. The Limitation Act, 1963 prescribes a time limit for the institution of all suits, appeals, and applications. Section 2(j) defines the expression "period of limitation" to mean the period of limitation prescribed in the Schedule for suits, appeals or applications. Section 3 lays down that every suit instituted after the prescribed period, shall be dismissed even though limitation may not have been set up as a defence. If a suit is not covered by any specific article, then it would fall within the residuary article.
26. Articles 58 and 59 of the Schedule to the 1963 Act, prescribe the period of limitation for filing a suit where a declaration is sought, or cancellation of an instrument, or rescission of a contract, which reads as under :
Description of Period of Time from which suit limitatio period begins to n run
58. To obtain Three When the right to any other years sue first accrues. declaration.
59. To cancel or Three When the facts Page 30 of 38 Downloaded on : Sun Sep 17 02:10:43 IST 2023 NEUTRAL CITATION C/FA/1745/2023 CAV JUDGMENT DATED: 23/08/2023 undefined set aside an years entitling the Instrument or plaintiff to have decree or for the instrument or the rescission decree cancelled or of a contract. set aside or the contract rescinded first become known to him.
The period of limitation prescribed under Articles 58 and 59 of the 1963 Act is three years, which commences from the date when the right to sue first accrues.
27. In Khatri Hotels Pvt. Ltd. & Anr. v. Union of India & Anr., (2011) 9 SCC 126, this Court held that the use of the word first between the words sue and accrued , would mean that if a suit is based on multiple causes of action, the period of limitation will begin to run from the date when the right to sue first accrues. That is, if there are successive violations of the right, it would not give rise to a fresh cause of action, and the suit will be liable to be dismissed, if it is beyond the period of limitation counted from the date when the right to sue first accrued.
28. A three-Judge Bench of this Court in State of Punjab v. Gurdev Singh, (1991) 4 SCC 1, held that the Court must examine the plaint and determine when the right to sue first accrued to the plaintiff, and whether on the assumed facts, the plaint is within time. The words "right to sue" means the right to seek relief by means of legal proceedings. The right to sue accrues only when the cause of action arises. The suit must be instituted when the right asserted in the suit is infringed, or when there is a clear and unequivocal threat to infringe such right by the defendant against whom the suit is instituted. Order VII Rule 11(d) provides that where a suit appears from the averments in the plaint to be barred by any Page 31 of 38 Downloaded on : Sun Sep 17 02:10:43 IST 2023 NEUTRAL CITATION C/FA/1745/2023 CAV JUDGMENT DATED: 23/08/2023 undefined law, the plaint shall be rejected.
29.11 The plea taken in the plaint that they learnt of the alleged fraud in 2014, on receipt of the index of the sale deed, is wholly misconceived, since the receipt of the index would not constitute the cause of action for filing the suit. ... ... ..."
19.8 At this stage, it would be apposite to refer to the judgment in the case of Venkatesh Construction Company Vs. Karnataka Vidyuth Karkhane Ltd., reported in (2016) 4 SCC 119, wherein the Hon'ble Apex Court has observed in Paragraph No.20 as under, "20. The Appellate Court may not interfere with the finding of the trial court unless the finding recorded by the trial court is erroneous or the trial court ignored the evidence on record. The High Court reversed the decree passed by the trial court without discussing oral and documentary evidence and several grounds raised before the trial court. The High Court veered away from the main issue and went on to elaborate on the law of arbitration and the mode of setting aside the arbitral award under Section 34 of the Arbitration Act, which in our view, was not warranted. Without considering the oral and documentary evidence, the High Court erred in interfering with the factual findings recorded by the trial court and the impugned judgment is liable to be set aside."
Page 32 of 38 Downloaded on : Sun Sep 17 02:10:43 IST 2023NEUTRAL CITATION C/FA/1745/2023 CAV JUDGMENT DATED: 23/08/2023 undefined 19.9 At this stage, it would be apposite to refer to the judgment in the case of V. Prabhakara Vs. Basavaraj K. (Dead) by Legal Representatives & Ors., reported in (2022) 1 SCC 115, wherein the Hon'ble Supreme Court has observed in Paragraph Nos.21 and 22 has observed as under, "21. A relief can only be on the basis of the pleadings alone. Evidence is also to be based on such pleadings. The only exception would be when the parties know each other's case very well and such a pleading is implicit in an issue. Additionally, a court can take judicial note of a fact when it is so apparent on the face of the record. A useful reference can be made to the following passage in Bachhaj Nahar v. Nilima Mandal, (2008) 17 SCC 491:
"15. The relevant principle relating to circumstances in which the deficiency in, or absence of, pleadings could be ignored, was stated by a Constitution Bench of this Court in Bhagwati Prasad v. Chandramaul [AIR 1966 SC 735]: (AIR p. 738, para 10) "10. ... If a plea is not specifically made and yet it is cov- ered by an issue by implication, and the parties knew that the said plea was involved in the trial, then the mere fact that the plea was not expressly taken in the pleadings Page 33 of 38 Downloaded on : Sun Sep 17 02:10:43 IST 2023 NEUTRAL CITATION C/FA/1745/2023 CAV JUDGMENT DATED: 23/08/2023 undefined would not necessarily disentitle a party from relying upon it if it is satisfactorily proved by evidence. The general rule no doubt is that the relief should be founded on pleadings made by the parties. But where the substantial matters relating to the title of both parties to the suit are touched, though indirectly or even obscurely, in the issues, and evidence has been led about them, then the argument that a particular matter was not expressly taken in the pleadings would be purely formal and technical and cannot succeed in every case. What the Court has to consider in dealing with such an objection is: did the parties know that the matter in question was involved in the trial, and did they lead evidence about it? If it appears that the parties did not know that the matter was in issue at the trial and one of them has had no opportunity to lead evidence in respect of it, that undoubtedly would be a different matter. To allow one party to rely upon a matter in respect of which the other party did not lead evidence and has had no opportunity Page 34 of 38 Downloaded on : Sun Sep 17 02:10:43 IST 2023 NEUTRAL CITATION C/FA/1745/2023 CAV JUDGMENT DATED: 23/08/2023 undefined to lead evidence, would introduce considerations of prejudice, and in doing justice to one party, the Court cannot do injustice to another."
23. It is fundamental that in a civil suit, relief to be granted can be only with reference to the prayers made in the pleadings. That apart, in civil suits, grant of re- lief is circumscribed by various factors like court fee, limitation, parties to the suits, as also grounds barring relief, like res judicata, estoppel, acquiescence, non- joinder of causes of action or parties, etc., which require pleading and proof. Therefore, it would be hazardous to hold that in a civil suit whatever be the relief that is prayed, the court can on examination of facts grant any relief as it thinks fit. In a suit for recovery of rupees one lakh, the court can- not grant a decree for rupees ten lakhs. In a suit for recovery possession of property 'A', court cannot grant possession of property 'B'. In a suit praying for permanent injunction, court cannot grant a relief of declaration or possession. The jurisdiction to grant relief in a civil suit necessarily depends on the pleadings, prayer, court fee paid, evidence let in, etc."
Page 35 of 38 Downloaded on : Sun Sep 17 02:10:43 IST 2023NEUTRAL CITATION C/FA/1745/2023 CAV JUDGMENT DATED: 23/08/2023 undefined (emphasis in original) Section 96:
22. The first appellate court while exercising power under Section 96 can re-do the exercise of the trial court. However, such a power is expected to be exercised with caution. The reason being, the trial court alone has the pleasure of seeing the demeanor of the witness. Therefore, it has got its own advantage in assessing the statement of the witnesses which may not be available to the appellate court. In exercising such a power, the appellate court has to keep in mind the views of the trial court. If it finds that the trial court is wrong, its decision should be on the reasoning given. A mere substitution of views, without discussing the findings of the trial court, by the appellate court is not permissible. If two views are possible, it would only be appropriate to go with the view expressed by the trial court. While adopting reasoning in support of its findings, the appellate court is not expected to go on moral grounds alone."
20. By applying the principle of law laid down by the Hon'ble Apex Court in aforesaid decisions to the facts of the case on hand, we are of the opinion that the learned Court below has correctly applied the principles of law enunciated by the Honorable Apex Court as well Page 36 of 38 Downloaded on : Sun Sep 17 02:10:43 IST 2023 NEUTRAL CITATION C/FA/1745/2023 CAV JUDGMENT DATED: 23/08/2023 undefined as by Honorable High Court in exercise of powers under Order 7, Rule 11 of Code.
21. From the overall reading of the documents and considering the relevant proposition of law it appears that the forefather of the appellants -
original plaintiffs have sold the land in question by executing registered sale deed to the forefather of the defendants in the year 1980 and, thereafter in the year 1983, entry was mutated in the revenue record on the strength of the said sale deed and thus from the year 1980, the appellants were well within the knowledge of registration of the said sale deed. Over and above that, as admitted by the appellants - original plaintiffs, they came to know about the registration of the sale deed in the year 2009, for which, instead of preferring suit, they have instituted revenue proceedings by filing RTS Appeal. Thus from the said fact itself, it is clear that the appellants - original plaintiffs came to know about the registered sale deed in the year 2009. Thus despite the appellants - original plaintiffs were having knowledge about the registration of the sale deed, they remained silent from the year 1980 upto the year 2009 and despite having knowledge about the same, the aforesaid suit was filed in the year 2021 i.e. after lapse of more than 13 years and it is clearly barred by provision of law of limitation Page 37 of 38 Downloaded on : Sun Sep 17 02:10:43 IST 2023 NEUTRAL CITATION C/FA/1745/2023 CAV JUDGMENT DATED: 23/08/2023 undefined and in view of the proposition of law down by the Honorable Apex Court, present appeal is required to the dismissed and the impugned order is required to be maintained. Therefore in view of the aforesaid facts of the case and the observations made hereinabove, we are of the opinion that the impugned judgment and award is just, fair and proper and does not require any interference from this Hon'ble Court.
22. Accordingly, present First Appeal is dismissed.
Notice is discharged.
23. In view of dismissal of main First Appeal, Civil Application No.1 of 2023 does not survive and stands disposed of accordingly.
Sd/-
(ASHUTOSH SHASTRI, J.) Sd/-
(DIVYESH A. JOSHI, J.) Gautam Page 38 of 38 Downloaded on : Sun Sep 17 02:10:43 IST 2023