Gujarat High Court
Vijaybhai Martinbhai Christian vs Helinaben D/O Khodabhai Surabhai And ... on 4 April, 2024
Author: Vaibhavi D. Nanavati
Bench: Vaibhavi D. Nanavati
NEUTRAL CITATION
C/CRA/95/2019 ORDER DATED: 04/04/2024
undefined
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CIVIL REVISION APPLICATION NO. 95 of 2019
With
CIVIL APPLICATION (FOR DIRECTION) NO. 1 of 2023
In
R/CIVIL REVISION APPLICATION NO. 95 of 2019
===================================================
VIJAYBHAI MARTINBHAI CHRISTIAN & ORS.
Versus
HELINABEN D/O KHODABHAI SURABHAI AND W/O
WILSANBHAI THAKOR & ORS.
===================================================
Appearance:
MR. MRUGEN K. PUROHIT for MR APURVA R KAPADIA(5012)
for the Applicant(s) No. 1,2,3,3.1,4,5
MR VISHAL C MEHTA(6152) for the Applicant(s) No. 6,7
for the Opponent(s) No. 2.7
DECEASED LITIGANT for the Opponent(s) No. 1,1.3,1.6,2
MR. MIHIR THAKORE, Senior counsel assisted by MS MITA S
PANCHAL(530) for the Opponent(s) No.
1.1,1.2,1.3.1,1.3.2,1.3.3,1.3.4,1.4,1.5,1.6.1,1.6.2,1.6.3,1.6.4,2.1,2.
2,2.3,2.4,2.5,2.6,2.7.1,2.7.2,2.7.3
===================================================
CORAM:HONOURABLE MS. JUSTICE VAIBHAVI D. NANAVATI
Date : 04/04/2024
ORAL ORDER
[1] Issue RULE, returnable forthwith. Ms. Mita S. Panchal, learned advocate waives service of Rule for and on behalf of the respondents / opponents.
Page 1 of 28 Downloaded on : Mon Apr 08 20:41:36 IST 2024 NEUTRAL CITATION C/CRA/95/2019 ORDER DATED: 04/04/2024 undefined [2] Heard Mr. Mrugen K. Purohit, learned advocate for
the applicants and Mr. Mihir Thakore, learned Senior counsel assisted by Ms. Mita S. Panchal, learned advocate appearing for the opponents herein - original plaintiffs.
[3] By way of the present Civil Revision Application, under Section 115 of the Code of Civil Procedure, 1908 (for short 'the Code'), the applicants - original defendants have approached this Court, being aggrieved and dissatisfied by the impugned order dated 03.12.2018 passed below application filed under Order 7 Rule 11(d) of 'the Code' below Exhibit-80, passed by the learned 3rd Additional Senior Civil Judge, Ahmedabad (Rural), Mirzapur in Regular Civil Suit No.161 of 2008, whereby, the said application was rejected.
[4] The brief facts leading to filing of the present Civil Revision Application read thus:
[4.1] It is the case of the applicants that the land in question having Survey / Block No.73 of Mouje- Kamod & Survey / Block Nos.138, 401, 406 and 408 of Mouje - Bakrol, Taluka -
Page 2 of 28 Downloaded on : Mon Apr 08 20:41:36 IST 2024 NEUTRAL CITATION C/CRA/95/2019 ORDER DATED: 04/04/2024 undefined
Daskroi, District - Ahmedabad, was running in the name of one Khodabhai Surabhai Christian, who passed away on 17.10.1944 and on his demise, the name of father of the applicants being Martinbhai Khodabhai was mutated in the revenue record. It is submitted that the original plaintiffs claim to be the heirs of Khodabhai Surabhai Christian.
[4.2] It is further stated that despite the fact that the names of the father of the original defendants was mutated in the revenue record and thereafter, the names of the defendants came in the revenue record, after a delay of about more than 60 years, the original plaintiffs - the respondents herein have instituted Regular Civil Suit No.161 of 2008 before the Principal Senior Civil Judge, Ahmedabad (Rural), Mirzapur, seeking permanent injunction directing the defendants not to transfer or assign or alienate the suit property. The possession qua the suit property have not been prayed for and therefore, under Section 34 of the Special Relief Act, mere declaratory suit without seeking possession, is not maintainable. It is stated that on service of summons, the applicants - original defendants Page 3 of 28 Downloaded on : Mon Apr 08 20:41:36 IST 2024 NEUTRAL CITATION C/CRA/95/2019 ORDER DATED: 04/04/2024 undefined appeared and filed their written statement.
[4.3] That, upon by-parte hearing, the competent Court granted injunction by an order dated 21.04.2009 directing the parties to maintain status quo qua the suit properties. [4.4] That, various applications came to be preferred by the applicants herein for joining several third parties as defendants, however, some of the applications were not pressed and some are still pending, however, till date, no prayer with regard to partition and / or seeking possession of the suit property has been prayed by the original plaintiffs.
[4.5] In the aforesaid set of facts, the applicants herein - original defendants filed an application below Exhibit -80 under Order 7 Rule 11(d) of 'the Code' for rejection of the plaint, the same being barred by limitation and under the provisions of the Specific Relief Act. The competent Court rejected the said application vide order dated 03.12.2018.
[4.6] Being aggrieved by the said order, the applicants herein are constrained to approach this Court by filing the Page 4 of 28 Downloaded on : Mon Apr 08 20:41:36 IST 2024 NEUTRAL CITATION C/CRA/95/2019 ORDER DATED: 04/04/2024 undefined present Civil Revision Application, with the following reliefs:
"(A) YOUR LORDSHIPS may be pleased to admit and allow the petition.
(B) YOUR LORDSHIPS may be pleased to call from the record and proceedings from the court of the learned 3 rd Additional Senior Civil Judge, Ahmedabad (Rural), Mirzapur in Regular Civil Suit No.161 of 2008 and further be pleased to quash and set aside the order dated 03.12.2018 passed below application filed under Order 7, Rule 11(d) of the Code of Civil Procedure, 1908 below Exh.80 by the learned 3 rd Additional Senior Civil Judge, Ahmedabad (Rural), Mirzapur in Regular Civil Suit No. 161 of 2008 and allow the application, Exh.80 filed by the applicants herein under Order 7, Rule 11(d) of the Civil Procedure Code, 1908 for rejection of plaint as prayed for.
(C) Pending admission, hearing and final disposal of present petition, YOUR LORDSHIPS may be pleased to stay further proceedings of Regular Civil Suit No. 161 of 2008 pending in the Court of learned 34 Additional Senior Civil Judge, Ahmedabad (Rural), Mirzapur.
(D) YOUR LORDSHIPS may be pleased to grant any other and further relief/s, as may be deemed just and proper in the interest of justice and fitness of things."
[5] Heard Mr. Mrugen K. Purohit, learned advocate for the applicants.
[5.1] Mr. Purohit, learned advocate, at the outset, submitted that the original plaintiffs who are claiming to be legal heirs of deceased, Khodabhai Surabhai and upon his death, in the year 1944, have filed the suit in the year 2008 claiming right Page 5 of 28 Downloaded on : Mon Apr 08 20:41:36 IST 2024 NEUTRAL CITATION C/CRA/95/2019 ORDER DATED: 04/04/2024 undefined over the suit property, after a period of about more than 60 years. It was submitted that even if the case of the original plaintiffs is to be believed that the plaintiffs were minor, upon having attained majority, immediately Suit ought to have been filed within a period of three years and in view thereof, the Suit is barred by Articles 54 and 56 of the Limitation Act. The suit is barred by limitation under Article 64 also, wherein, Suit for possession is required to be filed within a period of 12 years. In the facts of the present case, the Suit is filed after 60 years, after expiry of the period of limitation. Mr. Purohit, learned advocate submitted that as per the Article- 58 of the Limitation Act, limitation for declaratory suit on multiple cause of action began to run from the date when right to sue 'first accrued'. Mr. Purohit, learned advocate further submitted that successive violation of articles will not give rise to fresh cause and suit will be liable to be dismissed as it is beyond the period of limitation and the same is to be counted from the date when right to sue first accrue.
[5.2] Placing reliance on the aforesaid submissions, Mr. Page 6 of 28 Downloaded on : Mon Apr 08 20:41:36 IST 2024 NEUTRAL CITATION C/CRA/95/2019 ORDER DATED: 04/04/2024 undefined
Purohit, learned advocate appearing for the applicants submitted that the reasons assigned by the competent Court while rejecting the application below Exhibit -80, are not just and proper and the impugned order is required to be quashed and set aside. Consequently, the plaint is required to be rejected under Order 7 Rule 11(d) of 'the Code', the same being filed after a delay of 60 years and barred under Section 34 of the Specific Relief Act, wherein the suit is not maintainable, in absence of declaratory relief.
[5.3] It was submitted that the original plaintiffs and their husbands have also signed the family partition (mutual agreement) in the year 1990 and at that point of time also, they never objected to the same and had signed as witnesses to the family partition agreement, and therefore, on the ground of principles of acquiescence and having knowledge with respect to the partition in the year 1990, the filing of the suit in the year 2009, is clearly time barred and the plaint ought to have been rejected. It was submitted in para-5 of the plaint that the cause of action of filing of the suit is stated as 12.08.1997, by which it Page 7 of 28 Downloaded on : Mon Apr 08 20:41:36 IST 2024 NEUTRAL CITATION C/CRA/95/2019 ORDER DATED: 04/04/2024 undefined is claimed that Survey No. 93 was sold and thereby, the rights of the original plaintiffs in the land in question have been duped. [5.4] Placing reliance on the same, it was submitted that the plaintiffs had clear knowledge that the land of Survey No.73 was sold in the year 1997, despite that the Suit is filed in the year 2008 and the same is hopelessly time barred. [5.5] It was further submitted that the concerned Court failed to appreciate that under Section 34 of the Specific Relief Act, without praying for relief in respect of possession, mere suit for declaration is not maintainable and the possession as well as the consequential reliefs are required to be prayed for, only then the Suit is maintainable. It was submitted that it is held in catena of decisions by the Hon'ble Supreme Court that mere declaratory Suit is not maintainable without seeking the relief of possession and on that ground also, the suit in question is required to be dismissed.
[5.6] Mr. Purohit, learned advocate placed reliance on the decision in the case of Dahiben v/s. Arvindbhai Kalyanji Page 8 of 28 Downloaded on : Mon Apr 08 20:41:36 IST 2024 NEUTRAL CITATION C/CRA/95/2019 ORDER DATED: 04/04/2024 undefined Bhanushali reported in (2020) 7 SCC 366 and other decisions and vehemently submitted that the plaint suffers from illusory cause of action and clever drafting. The same is vexatious and results in abuse of process of law.
[5.7] Mr. Purohit, learned advocate vehemently submitted that the averments made in the plaint are nothing but clever drafting to fall within the ambit of limitation. It was submitted that while the sale deed qua Survey No. 73 in question of the year 1997 is not challenged and that Survey No.138 has been acquired by the State Government, the same are not the subject matter of challenge, however, the injunction as prayed for qua the rest of the survey numbers, cannot bear shield to the original plaintiffs - opponent herein, to bring them within the period of limitation. It was reiterated that undisputedly the plaintiffs' father expired in the year 1944 and the Suit in question came to be filed in the year 2008 and in between there were subsequent events and the applicants' name came to be recorded in the revenue record.
[5.8] Mr. Purohit, learned advocate submitted that the Page 9 of 28 Downloaded on : Mon Apr 08 20:41:36 IST 2024 NEUTRAL CITATION C/CRA/95/2019 ORDER DATED: 04/04/2024 undefined
present Civil Revision Application may kindly be allowed and the plaint be rejected under Order-7 Rule-11(d) of the Code of Civil Procedure, the same being barred by law of limitation and also under Section 34 of the Specific Relief Act.
[6] Heard Mr. Mihir Thakore, the learned Senior counsel assisted by Ms. Mita S. Panchal, learned advocate appearing for the opponents herein - original plaintiffs.
[6.1] Mr. Thakore, learned counsel appearing for the opponents herein submitted that the the parties belong to christian religion and are governed by Indian Succession Act. It was submitted that the opponents herein are the co-owners of the property in question. Reliance was placed on the plaint and placing reliance on the same, Mr. Thakore, learned senior counsel appearing for the opponents, submitted that no error is committed by the competent Court. The plaintiffs have filed the suit in their capacity as the legal heirs of deceased Khodabhai Surabhai Christian, having expired on 17.10.1944. It was submitted that the suit in question is filed for a limited purpose seeking injunction qua the properties being Block Nos. 138, 401, Page 10 of 28 Downloaded on : Mon Apr 08 20:41:36 IST 2024 NEUTRAL CITATION C/CRA/95/2019 ORDER DATED: 04/04/2024 undefined 406 and 408 of the land in question. It was submitted that para- 7 of the plaint clearly states that the defendants are hand-in- glove with each other and though the plaintiffs - opponents herein are legal heirs of the lands in question, the land bearing Block No.73 is transferred and Block No.138 is acquired by the State Government, keeping the plaintiffs in dark. In view of the aforesaid, it is apprehended that the aforesaid may result in transfer of property unlawfully and for the said reason to stop the defendants from transferring the land further, the Suit in question is filed. It was submitted that the bar under Section 34 is not applicable to co-owners.
[6.2] The ratio has been relied upon by Mr. Thakore, learned senior counsel, as laid down by the Hon'ble Apex Court in the case of 2004 (1) SCC 271 and other decisions. [6.3] It was submitted that the suit came to be filed by the opponents herein as back in the year 2008 and the status quo is granted by the competent Court in the injunction application. Thereafter, an application under Order 7 Rule 11 (d) of the Code seeking rejection of the plaint came to be filed by Page 11 of 28 Downloaded on : Mon Apr 08 20:41:36 IST 2024 NEUTRAL CITATION C/CRA/95/2019 ORDER DATED: 04/04/2024 undefined the applicants herein in the year 2016 and in view of the same, the present order is passed. The impugned order below Exhibit - 80 is passed on 03.12.2018, which requires no interference, wherein, the competent Court has held that there are criminal proceedings pending with respect to the disputed land in question, where, charge-sheet is also filed and the Court further held that the question of limitation is a triable issue and mixed question of law and facts. The reliance was placed on the case of Chotnaben Krushna Thakkar, wherein, it was held that the limitation is a mixed question of law and fact. [6.4] Mr. Thakore, learned senior counsel relying on the aforesaid submissions, submitted that no interference is required in the order passed by the competent Court and the present Civil Revision Application may kindly be dismissed. [7.1] It is apposite to refer to the cause of action and prayer clause of the plaint, wherein, relevant paras-7 to 10 reads thus:
"7. As we the plaintiffs came to know the aforesaid details, we are afraid that, if the respondents herein in collusion with each other Page 12 of 28 Downloaded on : Mon Apr 08 20:41:36 IST 2024 NEUTRAL CITATION C/CRA/95/2019 ORDER DATED: 04/04/2024 undefined in any manner sale or transfer the lands bearing block numbers mentioned in this suit to some other person, we will lose our legal right, share over the same, and will have to waive off our right over our ancestral land. Therefore, urgent need arose for injunction against the respondent herein that, in any manner, they may not sale or transfer the property bearing block number mentioned in this suit by themselves or through their agent.
8. The cause of this suit is that, there is every possibility that, the respondents in collusion with each other will arbitrarily sale or transfer the land under their possession and occupation to other person in which us the plaintiffs have equal right and share, with intention of usurping our right and share. This is because, they have directly sold the land at Block No.73 keeping us in dark. Whereas, the land at block No.138 has been acquired by the government for the ring road and the compensation money received thereof is also taken by the respondents keeping us in dark. Thus, as they are making effort to sell the land by any means possible, the cause of this suit has arose in the jurisdiction of this Hon'ble Court to stop them from committing this illegal act.
8. We, the plaintiff has a strong prima facie case, the balance of connivance is in favor of us the plaintiff. If the act of the respondents is not stopped, we the plaintiff may suffer losses that can not be compensated in money. Whereas, if the respondents succeed in their ill-intention, we would lose our legal right and therefore, it is very necessary to pass the injunction order against the respondents.
9. We, the plaintiffs are going to file separate suit to get our legal right over the said lands. We declare the same to the Hon'ble Court.
10. Therefore it is to pray that, (A) It is prayed to pass a permanent injunction order in favor of us the plaintiffs, barring the respondents herein to sell or transfer the land bearing S.No./Block No.138, 406 and 408 situated at Bakrol, (Badrabad) Taluka Daskroi, District Ahmedabad and lands bearing Block No.193 situated at Village Kamod Taluka Daskroi in any manner to other person by themselves or through their servant, agent or associate.Page 13 of 28 Downloaded on : Mon Apr 08 20:41:36 IST 2024
NEUTRAL CITATION C/CRA/95/2019 ORDER DATED: 04/04/2024 undefined (B) It is prayed to grant any other relief deem appropriate and fit by you.
(C) It is prayed to get us paid all costs of this suit." [7.2] The impugned order dated 03.12.2018 passed below application filed under Order 7 Rule 11(d) of 'the Code' below Exhibit-80, passed by the learned 3 rd Additional Senior Civil Judge, Ahmedabad (Rural), Mirzapur in Regular Civil Suit No.161 of 2008, the operative part of the said order- para-7, 8 and 9, 10, reads thus:
"(7) Considering the submissions for both the parties as well as on perusal of Plaint, it is found that the Plaintiff of the case has sought relief of injunction order to the effect that the suit property may not be transferred or got transferred to any other person; except this, no other relief is sought. The interim injunction application has been disposed of in this case and order is passed therein that both the parties shall maintain status quo till the final disposal of the suit. Various types of applications are pending in this case.
(8) On perusal of the pleadings of the Plaintiff, it is found that it is not clearly mentioned as to when the cause of the suit arose i.e. no pleadings of any exact date and time has been made. Looking to the pleading of the Plaintiff, it is stated in Para No. 5 of his pleadings that out of the lands bearing block survey number mentioned in the plaint, sale of land of Block Survey No. 73 was carried out on 12/8/1997 through Deed No. 2715. The Plaintiff has right and share in this property and the Defendants have sold land of Block No. 73 admeasuring acre-4 guntha-36 in collusion with one another. It is mentioned in Para No. 6 that land of Revenue Survey No./Block No. 138 located on 60 meter Ring Road has been acquired and compensation has been paid for the same on 23/05/2007. Thus, if the pleading of the Plaintiff is perused, no exact date or time is mentioned. The Page 14 of 28 Downloaded on : Mon Apr 08 20:41:36 IST 2024 NEUTRAL CITATION C/CRA/95/2019 ORDER DATED: 04/04/2024 undefined main contention of Defendant is on the point of limitation and it is mainly submitted that suit has not been filed within three years. It is found from the pleadings and prayer of the Plaintiff that the said suit is not for Cancellation or Specific Performance and the suit is not pertaining to contract or nor regarding the cancellation of sale deed. If the suit was regarding any of that kind, as per Article-54 and 59 of the Limitation, there is provision to institute the suit within three years. But, on the case on hand, injunction order is sought and by making pleading regarding right over the immovable property, pleadings are made stating that they have share in the ancestral property. Therefore, there is question regarding Article-65 of the Limitation. Now, genealogy entry vide Mark 3/1 is produced to show that they have share in the suit land. On perusal, it is found that Plaintiff No. 1 and 2 are included as heirs. On perusal of Mark 3/2 and 3/3, it is found that when Mutation Entry No. 3107, 1513 were mutated on 159/9/2007(sic.) and 28/09/2007, objections were received in notice of 135(d) and on perusal of copy of Sale Deed produced vide Mark 3/6 it is found that the Defendant of this case has sold the property of Block No. 73 by registered deed. It was sold on 12/09/1997. Thus, the question is regarding immovable property and contention is made regarding having right and share therein. Hence, it is the say of the Defendant that the Suit should have been filed within three years. This argument is not admissible. The suit is regarding injunction order pertaining to immovable property. The fact is that except the injunction order, no other relief is sought. Article 65 of the Limitation Act is as under:-
Article - 65 Limitation Act:-
For possession of immovable property or any interest therein based on title.
(a) where the suit is by a remainderman, a reversioner (other than a landlord) or a devisee, the possession of the defendant shall be deemed to become adverse only when the estate of the remainderman, reversioner or devisee, as the case may be, falls into possession;
(b) where the suit is by a Hindu or Muslim entitled to the possession of immovable property on the death of a Hindu or Muslim female, the possession of the defendant shall be deemed to become adverse only when the female dies;
(c) where the suit is by a purchaser at a sale in execution of a decree when the judgment-debtor was out of possession at the date of the Page 15 of 28 Downloaded on : Mon Apr 08 20:41:36 IST 2024 NEUTRAL CITATION C/CRA/95/2019 ORDER DATED: 04/04/2024 undefined sale, the purchaser shall be deemed to be a representative of the judgment-debtor who was out of possession. (9) On perusal of the above provision of article, the registered deed was executed 12/8/1997 and the present Suit was instituted on 11/03/2008. Moreover, my Predecessor Ld.Judge has passed order under application of Exh.5 to maintain status quo regarding suit property by both the parties and it is not found from record that any Appeal or Revision has been filed against that order. The contentions raised by the Defendant in the reply as well as the contentions raised in Order-7 Rule-11 are his defense. The defense of the Defendant cannot be seen at the stage of Order-7 Rule-11.
The pleadings of the plaintiff and the deed can be taken into perusal. The contention raised by the Defendant in this case touches the mixed question of law and fact. It cannot be decided without recording evidence. The evidences of both the parties are yet to be produced. Many types of applications are pending and therefore, it cannot be stated that the Suit is barred by limitation. Even if the date of executing the Deed is taken into consideration, as the Suit is regarding right over the immovable property as per Article-65, the Suit requires to be instituted within 12 years. Thus, if the above time-limit is taken into consideration, the present Suit has been instituted within 12 years. The argument of the Defendant is not admissible that the Suit should have been instituted within three years and that the Suit be rejected on limitation ground. Complaint of cheating in respect of this same land has also been lodged against the same Defendants of this case and Criminal Case is pending in this regard. The decision of the application under Exh.5 was given in faovur of the Plaintiff. Injunction order is in force and if the application is rejected, the injunction order of the case would be indirectly lifted. The parties would have to get into multiplicity of proceedings. Moreover, the Plaintiff has lodged police complaint against the Defendants under section - 406 and 420 of the Indian Penal Code. Criminal Case is registered in this regard which is pending at present. No such pleadings is included in the Pleading of the Plaintiff. The complaint of the Plaintiff was registered in the year 2016 and case number is assigned, but at this stage, pleadings should be taken into consideration. No submission is made regarding fraud in the pleadings. Moreover, when they have made contention on the basis of section-3 of the Transfer of Property Act, it can be believed that question regarding Sale Deed has been raised. The present Suit is a declaratory Suit. It is not about cancellation of Page 16 of 28 Downloaded on : Mon Apr 08 20:41:36 IST 2024 NEUTRAL CITATION C/CRA/95/2019 ORDER DATED: 04/04/2024 undefined sale deed nor such relief has been sought. Hence, the contention of Section-3 is not admissible. No such submission is also made in the application of the Defendant. It is mentioned in the judgment of Vaan Oil Petroleum, delivered in case of 480/2015 produced in this case that the Court has observed that there should be material on record that fraud has been committed.
Upon perusal of the judgments produced by the Plaintiff, (I) the judgment, reported in A.I.R., 2008, Supreme Court, page no. 3174, has been produced. The facts of the said case and the facts of the case on hand are different. The aforesaid case pertains to the partition, whereas the case on hand does not relate to any fact of the partition, and only demand for injunction has been made. As facts of both cases are different, it does not help the Plaintiff. Further, (II) the judgment, reported in A.I.R., 2008, Supreme Court, page no. 1828, has been produced. Upon perusal of the same, it appears that it is based on the facts of contract entered into by parties, and upon breach of the contract, the fact of payment of amount along with interest is mentioned therein, whereas in the case on hand, the Plaintiff, having mentioned about his share, has prayed for the injunction and therefore, facts of the aforesaid case do not apply to the case on hand. Further, (III) the judgment, reported in A.I.R., 2008, Supreme Court, page no. 3023, has been produced. Upon perusal of the same, it appears that its facts are different from the facts of the case on hand. In the aforesaid case, suit was dismissed for default and more than one suits were instituted, and they are related to mortgage and suits were decreed, whereas no such fact is found in the case on hand and therefore, the facts of the aforesaid case do not apply to the case on hand. Further, (IV) the judgment, reported in 2008(12), Supreme Court Cases, page no. 661, has been produced. Upon perusal of the same, it appears that the facts of the aforesaid case are different from the facts of the case on hand. The aforesaid case pertains to the partition, whereas the case on hand does not pertain to the partition, and only demand for the injunction has been made. Therefore, as the facts of both cases are different, it is not helpful to the Plaintiff. Further, (V) the judgment, reported in 2008(3), G.L.R., page no. 2308, has been produced. Upon perusal of the same, aforesaid case appears to be applicable to the case on hand. Further, (VI) the judgment, reported in 2005(0), G.L.H.E.L., Supreme Court Cases, page no. 37596, has been produced. Upon perusal of the same, it appears that it is applicable to the case on hand. The present case pertains Page 17 of 28 Downloaded on : Mon Apr 08 20:41:36 IST 2024 NEUTRAL CITATION C/CRA/95/2019 ORDER DATED: 04/04/2024 undefined to the demand of injunction, whereas in the judgment produced, demand has been made for the injunction and pertains to the sale deed and fraud. The case on hand also pertains to the sale deed and fraud. This case is applicable. Further, (VII) the judgment, reported in 2005(3), G.L.H., page no. 385, has been produced. Upon perusal of the same, it appears that the case on hand does not pertain to the specific performance, but is a declaration suit. Further, (VIII) the judgment, reported in 2015(3), G.L.R., page no. 2730, has been produced. Upon perusal of the same, it appears that he became the owner by way of the sale deed and therefore, he has possession and later on, he has demanded to declare that sale deed is void and null. The case on hand pertains to the ancestral property and he has his share in the same. As the facts of the judgment produced are different from the case on hand, it does not apply to the case on hand. Further, (IX) the judgment, reported in A.I.R., 1999, Supreme Court, page no. 1128, has been produced. Upon perusal of the same, it appears that it pertains to the election petition and it is different from the case on hand. The present suit pertains to the ancestral property. The facts of both cases are different. Further, (X) the judgment, reported in A.I.R., 2008, Supreme Court, page no. 363, (XI) 1996(2), G.L.R., page no. 688, (XII) A.I.R., 1984, Punjab and Haryana, page no. 319, (XIII) 1985(1), G.L.R., page no. 139, (XIV) 1996(0), G.L.H.E.L., Supreme Court, page no. 25209 have been produced. Upon perusal of the same, I am of the humble view that the facts of judgements produced and the facts of the case on hand are different and therefore, the aforesaid judgments do not apply to the case on hand.
Upon perusal of the judgment, reported in G.L.R., 2013 (I) 398, delivered by Hon'ble High Court of Gujarat in the case of Becharbhai Javerbhai Patel versus Jashabhai Shivabhai Patel, produced on behalf of the Defendant, it appears that sale deed has been challenged in the aforesaid case, whereas in the case on hand, there is no fact of sale deed, and the Plaintiffs have demanded their share. The facts of the aforesaid case are different from the case on hand and therefore, it is not helpful to the Defendant. Upon perusal of the judgment, reported in 1996(2), G.L.H., 393, produced on behalf of the Defendant, the facts of aforesaid case are different from the facts of the case on hand. Therefore, it is not helpful to the Defendant. It has been submitted on behalf of the Defendant by relying upon the judgment reported in S.C.C., 1977(4), 467, Supreme Court of India, that if false Page 18 of 28 Downloaded on : Mon Apr 08 20:41:36 IST 2024 NEUTRAL CITATION C/CRA/95/2019 ORDER DATED: 04/04/2024 undefined claims are made by the litigant, the same may be deemed to be contempt of the Court. The actions should be taken against such litigants. In the case on hand, suit is pending. Prima facie, case is in favour of the Plaintiff and injunction has been granted and therefore, at this stage, it cannot be presumed that false claim has been made. (IV) The judgment reported in Laws (G.J.H.) 2016(9) 28 has been produced, wherein no claim has been made in respect of the property for 51 years. In the case on hand, objection has been raised after entry having been mutated after execution of sale deed, and suit has been instituted praying for apportionment, and therefore, aforesaid judgment does not apply to present case. (V) The judgment, reported in A.D.(Delhi) 2015(5) 416, has been produced, it pertains to the amendment of the plaint, whereas the case on hand pertains to Court fee and sale deed. In the case on hand, declaration has been prayed for and complaint has been made and injunction is in force. As all the aforesaid facts of present case are different, it does not apply to the case on hand. (VI) The judgments, reported in S.C.C., 2014(14) 502 and (VII) Laws, (G.L.H.) 2018(5) 35, have been produced. Upon perusal of the same, as facts of the aforesaid both cases are different from the facts of the case on hand, they do not apply to the present case. (VIII) Upon perusal of the judgment delivered in the case of John Gidhiyinbhai Christian V/s. Wilson Somchand Thakor, being R/Civil Revision Application No. 480/2015, wherein sale deed was executed and the said sale deed was challenged. In the case on hand, sale deed has not been challenged. Thus, facts of both cases are different and therefore, it does not apply to the case on hand. (10) In the case on hand, police complaint has been registered in respect of the suit property, and charge-sheet has been filed at the conclusion of the investigation. This Court is of the opinion that the issue pertains to the limitation, which is a triable issue. It involves a mixed question of fact and law. As discussed above, in view of the established principle in the judgment rendered in the case of Chothaben and others v/s. Kiritbhai Jaykrushnabhai Thakkar by Hon'ble Supreme Court, triable issue is involved in the case on hand, and it is a mixed question of fact and law, and it is a subject of evidence. Thus, in view of aforesaid discussion, pleadings, documentary evidences produced and submission of both parties and citations produced, the present application of the Defendant is not tenable. Hence, I pass the following order.
-:: ORDER ::-
Page 19 of 28 Downloaded on : Mon Apr 08 20:41:36 IST 2024
NEUTRAL CITATION C/CRA/95/2019 ORDER DATED: 04/04/2024 undefined The application at Exh. No. 80 of the Defendants is hereby ordered to be dismissed. "
[8.1] In light of the aforesaid, having considered the submissions advanced by the learned advocates appearing for the respective parties, the facts as stated in the plaint, cause of action and prayer clause as prayed for and the impugned order passed by the competent Court, this Court is inclined to pass the following order:
A. The parties belong to the christian community, their right of partition of the property are governed under the Indian Succession Act, 1925. The father of plaintiffs late Khodabhai died in the year 1944. Being a christian and died without having a will, provision of Indian Succession Act, will apply under Part-4, which governs inter-state succession and Sections 29, 30, 32 and 33 of the Act shall also be made applicable. The plaintiffs herein have instituted the Regular Civil Suit No. 161 of 2008 in their capacity as legal heirs of deceased Khodabhai Surabhai Christian, who expired on 17.10.1944 at Aashpura, Village: Bakrol, claiming the plaintiff's right by preferring the Regular Civil Suit No. 161 Page 20 of 28 Downloaded on : Mon Apr 08 20:41:36 IST 2024 NEUTRAL CITATION C/CRA/95/2019 ORDER DATED: 04/04/2024 undefined of 2008 on 11.03.2008.
B. The plaintiffs - opponents herein are undisputedly the daughters of late Khodabhai Surabhai and are hence lineal descendants. During the lifetime of the Khodabhai, his wife Surajben and one son Sirilbhai and one daughter Lavinyaben expired, whereas, Martinbhai Sunandaben and Helinaben are alive. Therefore, there are total six legal heirs and representatives of late Khodabhai. As per Indian Succession Act, property was required to be distributed amongst all legal heirs i.e. widow if alive will get 1/3rd share and rest 2/3rd share will be distributed jointly amongst the children. In the facts of the present case, the property of Khodabhai has to be distributed amongst the original plaintiffs Sunandaben, Helinaben and Martinbhai. There is no oral partition or family agreement in writing for distribution of the property.
B.1. At this stage, it is apposite to refer to the ratio as laid down in the case of Sadasivam v/s. K. Doraisamy reported in (1996) 8 SCC 624, wherein, relevant Para-13 reads thus:
13. ........Hence, as a co-sharer, he was expected to possess the Page 21 of 28 Downloaded on : Mon Apr 08 20:41:36 IST 2024 NEUTRAL CITATION C/CRA/95/2019 ORDER DATED: 04/04/2024 undefined lands not partitioned between the parties. Exclusive possession of a co-sharer does not amount to adverse possession against other co-sharers unless such possession is exercised by ousting the other co-sharers. There is no such case of ouster of a co-sharer and thereafter exercise of exclusive possession openly and as of right by Doraisamy. That apart, the sale deed was executed by Marappa in September 1984 and the suit was instituted by Marappa for declaration of the sale deed as sham and invalid document in 1985. Hence, question of title by adverse possession did not arise."
The Hon'ble Supreme Court in the aforesaid decision held that the co-sharers are not expected to possess the lands not partitioned between the parties.
B.2. In the case of Md. Mohammad Ali (dead) by Lrs. v/s. Jagadish Kalita and Others reported in 2004 (1) SCC 271, relevant Para-20 and 21 reads thus:
"20. By reason of Limitation Act, 1963 the legal position as was obtaining under the old Act underwent a change. In a suit governed by Art. 65 of the 1963 Limitation Act, the plaintiff will succeed if he proves his title and it would no longer be necessary for him to prove, unlike in a suit governed by Articles 142 and 144 of the Limitation Act, 1908, that he was in possession within 12 years preceding the filing of the suit. On the contrary, it would be for the defendant so to prove if he wants to defeat the plaintiff's claim to establish his title by adverse possession.
21. For the purpose of proving adverse possession/ ouster the defendant must also prove animus possidendi."
B.3. The principle of law as laid down in the case of Page 22 of 28 Downloaded on : Mon Apr 08 20:41:36 IST 2024 NEUTRAL CITATION C/CRA/95/2019 ORDER DATED: 04/04/2024 undefined Dahiben (supra), in the opinion of this Court, the Suit cannot be said to be vexatious and in light of the aforesaid, the principle of law laid down in the case of Dahiben (supra) would not apply to the facts of the present case and the Plaint cannot be rejected at the stage of Order-7 Rule-11 of the Code of Civil Procedure. [8.2] In light of the aforesaid, plaintiffs have chosen to not to challenge the sale deed executed with respect to Survey No. 73, admeasuring Hector 4-36 Gunthas, Village: Bakrol, as also Survey No. 138 Hector 1-30 Gunthas at Tal.: Daskroi, which has been acquired by the State Government for the purpose of laying down the Ring Road. However, injunction is sought for with respect to the remaining Survey Numbers and the plaintiffs have claimed injunction qua Block No. 138 seeking equal share for the compensation received by the defendant.
[8.3] The Contention raised by the applicants / defendants with regard to Vijay Martin is about agreement executed in the year 1990, which is disputed by the plaintiffs as document in question is not registered. The main contention of the applicants Page 23 of 28 Downloaded on : Mon Apr 08 20:41:36 IST 2024 NEUTRAL CITATION C/CRA/95/2019 ORDER DATED: 04/04/2024 undefined
- original defendants is that the Suit is barred by limitation as per Articles 34 and 65 of the Limitation Act, the same is mixed question of law and facts. The same being a triable issue and for which the plaint cannot be rejected under Order-7 Rule-11(d) of the Code.
[8.4] The same is also considered by the competent Court, while considering the application below Order-7 Rule-11(d) of the Code, 1908, and held that Articles-54 and 59 of the Limitation Act provides for limitation to institute the Suit within a period of three years. In the present case, the injunction is sought for and pleadings are with respect to the plaintiff's share. The same is considered extensively by the competent Court, wherein, the competent Court has dealt with the contentions raised by the applicants with respect to the plaint being barred by Articles 54, 59 and 64 of the Limitation Act and after due consideration held that, on perusal of the averments made in the plaint, Section 65 provides the period of limitation for possession of immovable properties and interest therein based on the title. In the facts of the present case, the prayers are limited to injunction qua the Page 24 of 28 Downloaded on : Mon Apr 08 20:41:36 IST 2024 NEUTRAL CITATION C/CRA/95/2019 ORDER DATED: 04/04/2024 undefined immovable properties. The competent Court has also further considered the date of execution of the sale deed, as the Suit is with respect to the rights of the plaintiffs - appellants over the immovable properties, and as per Article-65 the Suit is required to be instituted within a period of 12 years. The present Suit is filed in the year 2008 and the sale deed is of the year 1997, the competent court has held the same is within the period of 12 years. It is further considered by the competent Court that on due consideration of the submissions advanced by the applicants
- original defendants, no interference is called for, in the findings arrived at by the competent Court that in the facts of the present case, the question of limitation is a mixed question of law and facts and the Suit is required to be decided on its own merits. At this stage, it is apposite to refer to the to the ratio as laid down by the Hon'ble Apex Court in the case of Chhotnaben & Anr. v/s. Kirtibhai Jalkrushnabhai Thakkar & Ors. reported in AIR 2018 SC 2447, wherein, relevant Paras 16 and 17 read thus:
"16. In the present case, we find that the appellants (plaintiffs) have asserted that the suit was filed immediately after getting knowledge about the fraudulent sale deed executed by original defendant Nos.1 & 2 by keeping them in the dark about such execution and within two days from the refusal by the original Page 25 of 28 Downloaded on : Mon Apr 08 20:41:36 IST 2024 NEUTRAL CITATION C/CRA/95/2019 ORDER DATED: 04/04/2024 undefined defendant Nos.1 & 2 to refrain from obstructing the peaceful enjoyment of use and possession of the ancestral property of the appellants. We affirm the view taken by the Trial Court that the issue regarding the suit being barred by limitation in the facts of the present case, is a triable issue and for which reason the plaint cannot be rejected at the threshold in exercise of the power under Order VII Rule 11(d).
17. In the above conspectus, we have no hesitation in reversing the view taken by the High Court and restoring the order of the Trial Court rejecting the application (Exh.21) filed by respondent No.1 (defendant No.5) under Order VII Rule 11(d). Consequently, the plaint will get restored to its original number on the file of the IVth Additional Civil Judge, Anand, for being proceeded further in accordance with law. We may additionally clarify that the Trial Court shall give effect to the order passed below Exh.17 dated 20th January, 2016, reproduced in paragraph 5 above, and take it to its logical end, if the same has remained unchallenged at the instance of any one of the defendants. Subject to that, the said order must be taken to its logical end in accordance with law."
[8.5] In the facts of the present case, Martinbhai entered his name as sole legal heir of Khodabhai in the revenue record, and therefore, the revenue record recites the name of Martinbhai. In the opinion of this Court, the plaint cannot be rejected under Order 7 Rule 11 of the Code, placing reliance on the revenue entries, wherein, name of Martinbhai is recorded. [9] In the facts of the present case, the plaintiffs have only prayed for injunction and not declaration, in view thereof, in the opinion of this Court, Section 34 of the Specific Relief Act Page 26 of 28 Downloaded on : Mon Apr 08 20:41:36 IST 2024 NEUTRAL CITATION C/CRA/95/2019 ORDER DATED: 04/04/2024 undefined would not be attracted. Section 34 of the Specific Relief Act provides that, if there is further relief that can be prayed for, the only relief for injunction should not be considered, however, exception is carved-out qua the co-owners, wherein, such reliefs are not required to be prayed for and the Suit is maintainable for grant of injunction. In view of the fact that, the co-owner is expected to possess the lands not partitioned between the parties, as referred to in the ratio as laid down in the case of 1996(8) SCC 634.
[10] In the opinion of this Court, the Suit is required to be decided on its own merits, after leading of the evidence and this Court is not inclined to interfere with the order passed by the competent Court dated 03.12.2018. The liberty is reserved in favour of the defendants - opponents to reiterate the request made in the modification application before the competent Court, wherein, the Suit being Regular Civil Suit No. 161 of 2008 is pending adjudication, which may be considered by the competent authority, in accordance with law.
[11] Considering the aforesaid, in the opinion of this Curt, Page 27 of 28 Downloaded on : Mon Apr 08 20:41:36 IST 2024 NEUTRAL CITATION C/CRA/95/2019 ORDER DATED: 04/04/2024 undefined
no interference is called for in the impugned order dated 03.12.2018 passed below application filed under Order-7 Rule- 11(d) of the Code of Civil Procedure below Exh.80 in Regular Civil Suit No. 161 of 2008 passed by the 3 rd Additional Senior Civil Judge, Ahmedabad (Rural), Mirzapur. The Suit be decided on its own merits, reserving the liberty qua the respective parties to take all the contentions at the time, when the Suit is tried before the concerned Court.
[12] For the foregoing reasons, the present Civil Revision Application is dismissed accordingly.
[13] In view of the order passed in the Civil Revision Application, pending Civil Application/s, stand/s disposed of, accordingly.
Interim relief, if any, stands vacated.
(VAIBHAVI D. NANAVATI,J) Pradhyuman Page 28 of 28 Downloaded on : Mon Apr 08 20:41:36 IST 2024