Gujarat High Court
Habibbhai Yusufbhai Gugarkhan & 2 vs Pramodbhai Rambhai Patel on 30 November, 2015
Author: S.G.Shah
Bench: S.G.Shah
C/SCA/18679/2013 CAV JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CIVIL APPLICATION NO. 18679 of 2013
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE S.G.SHAH
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1 Whether Reporters of Local Papers may be allowed
to see the judgment ?
2 To be referred to the Reporter or not ?
3 Whether their Lordships wish to see the fair copy of
the judgment ?
4 Whether this case involves a substantial question of
law as to the interpretation of the Constitution of
India or any order made thereunder ?
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HABIBBHAI YUSUFBHAI GUGARKHAN & 2....Petitioner(s)
Versus
PRAMODBHAI RAMBHAI PATEL....Respondent(s)
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Appearance:
MR JITENDRA M PATEL, ADVOCATE for the Petitioner(s) No. 1 - 2.4 , 3
MR MRUGEN K PUROHIT, ADVOCATE for the Respondent(s) No. 1
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CORAM: HONOURABLE MR.JUSTICE S.G.SHAH
Date : 30/11/2015
CAV JUDGMENT
1. Rule. Mr. Mrugen K. Purohit, learned advocate waives service of notice of Rule for and on Page 1 of 12 HC-NIC Page 1 of 12 Created On Wed Dec 02 01:37:55 IST 2015 C/SCA/18679/2013 CAV JUDGMENT behalf of Respondent.
2. Heard Mr. Jitendra M. Patel, learned advocate for the Petitioners, Mr. Mrugen K. Purohit, learned advocate for Respondent. Perused the record.
3. Petitioners are original Defendants, whereas, Respondent is original Plaintiff in Regular Civil Suit No.42 of 2009 pending before the Civil Judge (Senior Division) at Nadiad. The Plaintiff has filed the suit on 11.2.2009 for cancellation of sale deed dated 5.7.1994. In the plaint, it is alleged that the Plaintiff had suffered from heard attack and was not able to go to his field regularly but in the year 2008, when his relative, who was staying at America, has asked him to verify his land, Plaintiff has gone to his field, where he found that there is construction on his land and thereupon he has inquired and found that some forged sale deed was created by the Defendants though he has never sold the land to the Defendants. It is further stated that while mutating the properties in the name of the Defendants, no notice under Land Revenue Code was ever served upon him and, therefore, he could not notice the transfer of properties in the name of the Defendants and Page 2 of 12 HC-NIC Page 2 of 12 Created On Wed Dec 02 01:37:55 IST 2015 C/SCA/18679/2013 CAV JUDGMENT that thereby Defendants has mispersonated someone as a Plaintiff before the Registrar for executing the sale deed. So far as limitation is concerned, it is stated that on noticing the encroachment over the suit property, Plaintiff has approached the Government Office for obtaining certified copies of relevant documents and, thereafter, suit is filed and that since knowledge of sale deed is arrived only in the year 2008, the suit is filed in the year 2009 is within the prescribed period of limitation.
4. The Defendants have filed an application at Exh.14 in the suit under Order VII Rule 11 of the Code of Civil Procedure contending that the suit filed in the year 2009 for declaring the sale deed dated 5.7.1994 is absolutely time barred and, therefore, suit needs to be dismissed on such preliminary ground under Order VII Rule 11(d) as suit filed beyond prescribed period of limitation is barred.
5. The trial Court has after hearing both the sides rejected such application by impugned order dated 12.11.2013 observing that there are specific pleadings by the Plaintiff that he noticed the encroachment on the property in the year 2008 and knowledge of such Page 3 of 12 HC-NIC Page 3 of 12 Created On Wed Dec 02 01:37:55 IST 2015 C/SCA/18679/2013 CAV JUDGMENT fraudulent sale deed was obtained by the Plaintiff only on 2.1.2009 when certified copies of sale deed were obtained and that therefore since the question of limitation is mixed question of law and fact, suit cannot be dismissed on such technical grounds under Order VII Rule 11 of the Code.
6. For above stand, the petitioner is relying upon the following judgments:
(1) Ramti Devi (Smt) V. Union of India reported in (1995) 1 SCC 198.
(2) Becharbhai Z. Patel v. Jashbhai S. Patel reported in 2013(1) GLR 398.
(3) Vrindavan Cooperative Housing Society Ltd. V. Minaxiben Gordhanbhai Patel reported in 2010(5) GLR 3994.
(4) Dilboo (Dead) v. Dhanraji (Dead) reported in 2000(1) SCC 102.
(5) Kanjibhai Bhagwanjibhai Patel v. Nanduben Shamjibhai Sorathiya reported in 2013(1) GLR
51. Page 4 of 12
HC-NIC Page 4 of 12 Created On Wed Dec 02 01:37:55 IST 2015 C/SCA/18679/2013 CAV JUDGMENT The sum and substance of all such reported cases is to the effect that until the document is avoided or cancelled by proper declaration, the duly registered document remains valid and binds the parties and suit has to be filed within 3 years from the date when the cause of action has occurred i.e. date on which the sale deed is executed and registered. Hence, the suit filed beyond the period of 3 years is barred by limitation and, thereby, Hon'ble Supreme Court has confirmed the dismissal of suit by the trial Court.
7. However, if we see the factual details, the Hon'ble Supreme Court has confirmed that the execution and registration of sale deed was within the knowledge of the Plaintiff on the very day on which they were executed and, therefore, suit filed beyond the period of 3 years was held as time barred. Thereby, what is material is the date of knowledge of sale transaction by the Plaintiff, whereas, in the present case, Plaintiff has specifically averred that he has never executed the sale deed and he came to know about the fraudulent sale transaction, only in the year 2008.
8. It is not disputed that while considering Page 5 of 12 HC-NIC Page 5 of 12 Created On Wed Dec 02 01:37:55 IST 2015 C/SCA/18679/2013 CAV JUDGMENT application under Order VII, Rule 11(d) of the Code, the Court is required to consider the averments in the plaint and the supporting documents produced alongwith plaint and, therefore, though plaint can be rejected under provisions of Order VII, Rule 11(d) of the Code, for the purpose, there must be clear position emerging from the plaint itself that it is beyond the period of limitation. Therefore, when Hon'ble Supreme Court has considered the knowledge by the Plaintiff as deemed because of sale transaction and mutation entries, such presumption is to be considered with reference to the actual pleading before deciding such application. In case on hand, situation is altogether different when Plaintiff has categorically and specifically pleaded that he has never signed a sale deed and that he has never received an intimation regarding mutation entry and, therefore, in absence of an opportunity to prove his case, rejection of plaint on technical grounds would result into injustice.
9. It is also settled position that cited decision is based on its own merits and reliance cannot be placed on any such decision without looking into factual Page 6 of 12 HC-NIC Page 6 of 12 Created On Wed Dec 02 01:37:55 IST 2015 C/SCA/18679/2013 CAV JUDGMENT background of that case. Therefore, only because in few cited cases, there is an order of rejection of plaint under Order VII, Rule 11(d) of the Code, it cannot be said that in all such cases without considering the factual details and averments in the plaint, only because application under Order VII, Rule 11 of the Code is filed, the plaint needs to be rejected, when there are specific averments that documents is executed fraudulently and, more particularly, when Plaintiff averts that he has never executed such documents.
10. Reference to the judgment dated 17.9.2012 in Special Civil Application No.5921 of 2012 between Bhimjibhai Jadavbhai Vekhariya v. Suresh Lalji Gorasiya is material, wherein, it is held that the trial Court has no erred in any manner in not accepting the application under Order VII, Rule 11(d) of the Code, as various contentions still remains to be examined by the Court below in the suit. The Court has relied upon the following decisions: [A] Ninuawwa v. Byrappa Shiddappa Hirakhrabar, reported in AIR 1968 SC 936. [B] Himanshu Madanlal Shah v. Dr. B.M. Page 7 of 12 HC-NIC Page 7 of 12 Created On Wed Dec 02 01:37:55 IST 2015 C/SCA/18679/2013 CAV JUDGMENT Poojari, reported in 2005(3) GLH 385. Thereby, when the factual details of present case is almost similar with the case of Bhimjibhai Jadavbhai Vekhariya (Supra), wherein also, none of the Plaintiffs were a signatory of the sale deed or party in obtaining any permission, the Court has held that the law of limitation will not come in way of such Plaintiff when he has no knowledge about the fraudulent transactions in his name. It is also observed in such case, which has similar situation as in the present case also that 'even if Section 3 of Limitation Act is considered alongwith Articles 65 and 110, the pleadings in the plaint is about depriving the Plaintiffs and excluding them from the ancestral property and suit was filed on 28.1.2011 from the date of the knowledge about their exclusion of rights from the ancestral property as well as of sale deed and NA permission and, therefore, the Court below was justified in rejecting the plaint under Order 7 Rule 11 while concluding that law of limitation is a mixed question based on fact and law.'
11. In view of above facts and circumstances, when there are specific averments in the present case by the Plaintiff that he has not Page 8 of 12 HC-NIC Page 8 of 12 Created On Wed Dec 02 01:37:55 IST 2015 C/SCA/18679/2013 CAV JUDGMENT executed any sale deed and he came to know about the sale transaction only in the year 2008, it is clear and certain that there is mixed question of law and fact for considering the issue of limitation and, therefore, it would not be appropriate to dismiss the suit on such technical ground at preliminary state without offering a reasonable opportunity to both the sides to prove their case.
12. In view of above situation, though there is no substance in the petition so as to disturb the impugned order, it is to be observed that the Defendants may apply afresh for similar prayer during the trial of the suit, after necessary, evidence is to bring on record to prove that Plaintiff had knowledge about the transaction at particular time and, thereby, suit is barred by limitation. For the purpose either of the party may get the disputed signature examined by the Handwriting expert of FSL. It is obvious that if signature of the plaintiff is found on the disputed sale deed, he may be tried for purgery and hence he would not dare to plead that he had never signed the sale deed.
13. The reference to following decisions are Page 9 of 12 HC-NIC Page 9 of 12 Created On Wed Dec 02 01:37:55 IST 2015 C/SCA/18679/2013 CAV JUDGMENT material;
[a] The Church of Christ Charitable Trust and Educational Charitable Society, rep. By its Chairman v. Ponniamman Educational Trust, reported in AIR 2012 SC 3912 [b] Kamala v. Eshwara Sa, reported in AIR 2008 SC 3174 [c] Kamlesh Babu v. Lajpat Rai Sharma, reported in AIR 2008 SC (Suppl) 1931 [d] C.Natarajan v. Ashim Bai, reported in AIR 2008 SC 363 [e] Ramesh B. Desai v. Bipin Vadilal Mehta, reported in AIR 2006 SC 3672 [f] Raptakos Brelt & Co. v. M/s. Ganesh Property, reported in AIR 1998 SC 3085 [g] State of Orrissa v. Klockner and Company, reported in AIR 1996 SC 2140 [h] Popat and Kotecha Property v. State Bank of India Staff Association, reported in 2005(7) SCC 510 which makes it clear that the cause of action means bundle of facts which taken with law applicable to them give plaintiff right to relief against defendant. Thereby, application for rejection of plaint has to be decided only on the basis of averments made in the plaint. Thereby, Rule 11(d) of order 7 has limited application and, thus, conclusion Page 10 of 12 HC-NIC Page 10 of 12 Created On Wed Dec 02 01:37:55 IST 2015 C/SCA/18679/2013 CAV JUDGMENT that suit is barred under any law must be drawn from averments made in the plaint only. Though the principle of limitation can be raised at any point of time, it is certainly a mixed question of law and facts. Therefore, unless parties are allowed to adduce evidence, the suit cannot be rejected solely on such ground. Since issue is regarding possession of trespass, the question of fact which is yet to be proved and considered during trial, limitation would not be commenced unless there has been clear and unequivocal evidence of threat to right claimed by plaintiff. In such cases, application for rejection of plaint on the ground that suit was barred by limitation is not maintainable. Law of limitation relating to suit for possession has undergone a drastic change. In terms of Articles 64 and 65 of the Limitation Act, 1963, burden would be on defendant to prove that he has acquired title. Limitation cannot be decided as abstract principle of law, divorced from facts since it is a mixed question of law and facts. The cause of action and thereby limitation is to be culled out on a conjoint reading of all paragraphs of the plaint. When plaintiff is claiming that agreement is null and void and unenforcible, then, such Page 11 of 12 HC-NIC Page 11 of 12 Created On Wed Dec 02 01:37:55 IST 2015 C/SCA/18679/2013 CAV JUDGMENT contention cannot be distinguished with other facts and, thereby, rejection of plaint is not proper. Order 7, Rule 11(d) only applicable where the statement has been made in the plaint, without any doubt or dispute, shows that suit is barred by any law in force, but it does not apply in case of any disputed question. Thereby, in the present case, when plaintiff has categorically pleaded that he has never executed a sale deed, it is a certainly disputed question and, therefore, limitation cannot be decided without adducing evidence. Thereby, disputed question cannot be decided at the time of considering the application under Order 7 Rule 11. The case of Popat and Kotecha Property (Supra) has been relied upon and referred in more than 100 cases thereafter and, therefore, few trace cases are not relevant.
14. Under the above facts and circumstances, this petition is dismissed with the above observations. Rule is discharged.
(S.G.SHAH, J.) * VATSAL Page 12 of 12 HC-NIC Page 12 of 12 Created On Wed Dec 02 01:37:55 IST 2015