Madhya Pradesh High Court
Dilip Sisodiya vs Saraswatibai on 19 June, 2018
HIGH COURT OF MADHYA PRADESH, BENCH AT INDORE
Civil Revision No.189/2016
(Dilip Sisodiya Vs. Saraswatibai & Others)
-1-
Indore, dated 19/06/2018
Shri Veer Kumar Jain, learned senior counsel with Shri Sumit
Mittal, learned counsel for the petitioner.
Shri A. S. Parihar, learned counsel for the respondents No.1
and 2.
The present revision has been filed under Section 115 of the Code of Civil Procedure, 1908 being aggrieved by order dated 04/10/2016 passed by 16th Civil Judge, Class-2, Indore in Civil Suit No.201/2015.
02- The fact of the case reveal that the respondents No.1 and 2 have filed a civil suit for declaring the sale deed as null and void along with other consequential reliefs against the present petitioner
- defendant No.2 in the civil suit.
03- Undisputed facts as brought before this Court reveal that on 01/02/1989 a sale deed was executed jointly by Sevaram, Salagram, Ramchandra and Saraswati, who were exclusive owner of land bearing survey No.1035, 1094/1 and 1094/2/2. The sale deed was executed in favour of Shriram Grih Nirman Sahakari Sanstha Maryadit, Indore. Learned counsel appearing for respondents No.1 and 2, who are plaintiffs before the trial Court, have not disputed the aforesaid fact.
04- The another undisputed fact is that Shriram Grih Nirman HIGH COURT OF MADHYA PRADESH, BENCH AT INDORE Civil Revision No.189/2016 (Dilip Sisodiya Vs. Saraswatibai & Others) -2- Sahakari Sanstha Maryadit, Indore in turn has sold the property through registered sale deed dated 06/03/2007 to the present petitioner, who is defendant No.2 in the civil suit. In spite of the fact that property was sold by Saraswati through a registered sale deed dated 01/02/1989 to Shriram Grih Nirman Sahakari Sanstha Maryadit, Indore, she has not made any prayer for cancellation of sale deed dated 01/02/1989, meaning thereby, at the time the civil suit was filed it was not the Saraswati, who was title holder of the property. It was the Shriram Grih Nirman Sahakari Sanstha Maryadit, Indore, who was the title holder of the property.
05- In those circumstances, an application under Order VII Rule 11 of the Code of Civil Procedure, 1908 was filed and the trial Court has dismissed the same.
06- Undisputed facts establish before this Court that Saraswati, who was the owner of the suit property i.e. survey No.109/1 and 1094/2/2, has sold the suit property through a registered sale deed dated 01/02/1989. Cancellation of same was not sought in the plaint. Not only this, as she was not the title holder of the property, the application preferred under Order VII Rule 11 should have been allowed by the trial Court. Not only this, proper court fees was also not paid in the matter by the plaintiffs.
07- Another important aspect of the case is that the civil suit has HIGH COURT OF MADHYA PRADESH, BENCH AT INDORE Civil Revision No.189/2016 (Dilip Sisodiya Vs. Saraswatibai & Others) -3- been filed in November, 2015 seeking cancellation of sale deed dated 06/03/2007. This Court on 08/03/2016 in the case of Leeladhar Vs. Anwar Patel (Civil Revision No.275/2011) has dealt with the issue of limitation in respect of cancellation of sale deeds and paragraph No.19 to 25 of the aforesaid judgment reads as under:-
"19- The provisions of Order VI Rule 4-A of CPC are mandatory in nature and it is clear from the bare perusal of the suit, it is clear that there no necessary pleadings which are mandatorily required to be made in the plaint. Thus failure to comply with the aforesaid mandatory provisions of law would lead to rejection of the plaint. 20- The present suit is clearly barred by time as the sale deeds challenged in the suit are of the year 1995 and the suit has been filed in the year 2011 i.e. after more than three years of execution and registration of the sale deeds. The law being that registration of document is notice to whole world as has been held in the case of Suraj Lamp & Industries Pvt. Ltd. Through Director Vs. State of Haryana & Others reported in 2009(4) MPLJ 315 as under :-
"8. The Registration Act, 1908, was enacted with the intention of providing orderliness, discipline and public notice in regard transactions relating to immovable property and protection from fraud and forgery of documents of transfer. This is achieved by requiring compulsory registration of certain types of documents and providing for consequences of non-registration. Section 17 of the Registration Act clearly provides that any document (other than testamentary instruments) which purports or operates to create, declare, assign, limit or extinguish whether in present or in future "any right, title or interest"
whether vested or contingent of the value of Rs.100 and upwards to or in immovable property. Section 49 of the said Act provides that no document required by Section 17 to be registered shall, affect any immovable property comprised therein or received as evidence of any transaction affected such property, unless it has been registered. Registration of a document gives notice to the world that such a document has been executed.
Registration provides safety and security to transaction relating to immovable property, even if the document is lost or destroyed. It gives publicity and public exposure to documents thereby preventing forgeries and frauds in regard to transactions and execution of documents. Registration provides information to people who may deal with a property, so as to the nature and extent of the rights HIGH COURT OF MADHYA PRADESH, BENCH AT INDORE Civil Revision No.189/2016 (Dilip Sisodiya Vs. Saraswatibai & Others) -4- which persons may have, affecting that property. In other words, it enables people to find out whether any particular property with which they are concerned, has been subjected to any legal obligation or liability and who is or are the person/s presently having right, title, and interest in the property. It gives solemnity of form and perpetuate documents which are of legal importance or relevance by recording them, where people may see the record and enquire and ascertain what the particulars are and as far as land is concerned what obligations exist with regard to them. It ensures that every person dealing with immovable property can rely with confidence upon the statements contained in the registers (maintained under the said Act) as a full and complete account of all transactions by which the title of the property may be affected and secure extracts/copies duly certified."
21- It is also clear that the present suit filed in the year 2011 to challenge the sale deeds of the year 1995 i.e. after 16 years is clearly barred by time, while the period of limitation is only 3 years. It is also not in dispute that the petitioners' name in the revenue record were also recorded in the year 1995. Thus, the suit filed by the Respondent No.1 is clearly barred by limitation as has been held by this Court in the case of Nanhi Bai Vs. Govind Rao reported in MPWN 2006 V. 3 NOTE 88 as under:-
"9. Regarding substantial question of law No.(b) :
The gift deed is dated 6.2.1976 and the suit for its cancellation has been filed by the plaintiff on 6.4.1986. Under Article 59 of the Indian Limitation Act, the prescribed period of limitation is three years from the date of execution of instrument first become knowledge to the plaintiff. It is no more in dispute that Ex.D-1 gift deed dated 6.2.1976 is very well in the knowledge of the plaintiff right from the day of its execution and, therefore, the suit for cancellation of document ought to have been brought within three years from this date. Since the suit has been filed on 8.4.1986, therefore, it has become time barred.
Substantial question of law No. (b) is thus answered accordingly."
22- The aforesaid facts are undisputed and are clear from the plaint and undisputed documents and the objections raised by the petitioners are purely legal objections, hence no evidence with regard thereto is required and can be decided on the basis of legal position. Thus, the learned trial court has clearly committed jurisdictional error firstly in not considering the aforesaid objection and secondly in holding that evidence is required to be recorded for deciding the aforesaid issues. 23- The petitioners have also raised objections with regard to valuation of the suit, court fees, etc. It has also been objected that the petitioners are in possession of the suit land since 1995 which is not only proved from the registered sale deeds as also from the revenue record. There no evidence to even show that the Respondent No. 1 is in HIGH COURT OF MADHYA PRADESH, BENCH AT INDORE Civil Revision No.189/2016 (Dilip Sisodiya Vs. Saraswatibai & Others) -5- possession of the suit land, hence a suit without claiming the relief of possession is not maintainable. Certain objections with regard to the alleged agreements to sale are also raised. These objections may require some kind of evidence, however in view of the above legal objections, the suit is barred and hit by law, therefore, there more than sufficient grounds to reject the plaint.
24- The manner in which the learned trial court has dealt with the judicial precedent relied upon by the petitioners is also not proper because it has merely been observed that those citations are not applicable in the present circumstances without any discussion. Even all objections, which are purely legal objections, are not considered and decided. This approach of the learned trial court clearly amounts to failure to exercise the jurisdiction vested in it by law. 25- In view of the aforesaid, the suit filed by the Respondent No.1 is clearly barred by law and allowing its continuance would be gross misuse of process of law, hence the plaint deserves to be rejected and consequently the suit deserves to be dismissed. Resultantly, the present civil revision stands allowed. The application preferred under Order VII Rule 11 of the Code of Civil Procedure, 1908 stands allowed and the plaint is rejected."
08- In light of the aforesaid judgment, even in respect of subsequent sale deed, suit was barred by limitation and therefore, keeping in view the totality of the facts and circumstances of the case, this Court is of the opinion that application preferred under Order VII Rule 11 of the Code of Civil Procedure, 1908 ought to have been allowed. Resultantly, application preferred under Order VII Rule 11 is allowed and the suit is dismissed.
09- With the aforesaid, civil revision stands allowed.
Certified copy as per rules.
(S. C. SHARMA) JUDGE Tej Digitally signed by Tej Prakash Vyas Date: 2018.06.19 18:30:06 +05'30'