Gujarat High Court
Shantubhai Rajsangbhai Loh vs Bhikhabhai Kalubhai Patel on 29 July, 2013
Author: G.B.Shah
Bench: G.B.Shah
SHANTUBHAI RAJSANGBHAI LOH....Petitioner(s)V/SBHIKHABHAI KALUBHAI PATEL C/SCA/11098/2013 ORDER IN THE HIGH COURT OF GUJARAT AT AHMEDABAD ORDER BELOW SPEAKING TO MINUTES IN SPECIAL CIVIL APPLICATION NO. 11098 of 2013 ================================================================ SHANTUBHAI RAJSANGBHAI LOH....Petitioner(s) Versus BHIKHABHAI KALUBHAI PATEL & 17....Respondent(s) ================================================================ Appearance: MR SP MAJMUDAR, ADVOCATE for the Petitioner(s) No. 1 ================================================================ CORAM: HONOURABLE MR.JUSTICE G.B.SHAH Date : 29/07/2013 ORAL ORDER
The matter is notified on note for speaking to minutes related to order dated 12/07/2013, passed in above-referred Special Civil Application No. 11098 of 2013.
Heard the learned advocate for the petitioner. The learned advocate for the petitioner submitted that in the aforesaid order dated 12/07/2013, due to inadvertence, the judgments relied by the learned advocate for the petitioner has remained unincorporated, so also the submission as regards the execution of sale deed. In view of the above, following be incorporated in the aforesaid order dated 12/07/2013.
2.1 Reliance is placed on a decision in Sunderlal Bhanabhai Bhagat & ors. V. State of Gujarat & ors. [2012 (3) GLR 2081]. Learned advocate for the petitioner has relied on Head Note-A, which is reproduced hereunder :-
Bombay Prevention of Fragmentation and Consolidation of Holdings Act, 1947 (62 of 1947) Limitation Act, 1963 (36 of 1963) Art. 137 Seller voluntarily sold for consideration a fragment of land Sale void being in contravention of Prevention of Fragmentation Act Held, it is not open for seller to challenge sale-deed executed by him to be void as it would amount to taking benefit of his own wrong Further, limitation period of three years under Art. 137 apply to filing a revision application Judgment by Single Judge confirming dismissal of revision on ground of delay upheld.
2.2 The next judgment relied upon by the learned advocate for the petitioner is Hansaben w/o Bhagwanbhai ratanbhai & Legal Guardian of Minor Sanjay & ors. [2009 (2) GLR 1255].
The Head Note of the aforesaid judgment is reproduced hereunder:-
Constitution of India, 1950 Arts. 226 & 227 Bombay Prevention of Fragmentation & Consolidation of Holding Act, 1947 (LXII of 1947) Sec. 35 Delay of 19 years in challenging order 'void ab inition' Reason given for condonation of delay that order being 'void' can be challenged at any time Held, even 'void' order required to be challenged within period of limitation or within a reasonable period if limitation period is not prescribed 19 years is not a reasonable period 'Void' order remains in operation till it is reversed by higher forum The Court setting aside orders by revisional authority admitting revision by condoning delay and granting interim stay.
2.3 Learned advocate for the petitioner also relied upon a decision Becharbhai Zaverbhai Patel & Anr. v. Jashbhai Shivabhai Patel & ors. [2013 (1) GLR 398]. The relevant paragraph nos. 6.1 and 6.2 are reproduced hereunder :-
6.1.It is not disputed that while considering application under Order 7, Rule 11(d) of the Code of Civil Procedure, the Court is required to consider the averments in the plaint and the supporting documents produced along-with plaint. However, it cannot be disputed that if on the face of it and even considering the averments made in the plaint, it is found that the suit is clearly barred of law of limitation, the plaint can be rejected in exercise of powers under Order 7, Rule 11(d) of the Code of Civil Procedure. Even considering the decision of the Hon'ble Supreme Court in the case of N. V. Srinivasan Murthy v. Mariyamma (Dead) by Proposed L.Rs., reported in AIR 2005 SC 2897 as well as decision of the Hon'ble Supreme Court in the case of Dilboo (Smt.) (Dead) by L.Rs., [2000(7) SCC702] the plaint can be rejected in exercise of powers under Order 7, Rule 11
(d) of the Code of Civil Procedure if it is found that even accepting all the averments made in the suit, it is found therefore, the suit is barred by law of limitation. Considering the above proposition of law laid down by the Hon'ble Supreme Court, it is required to be considered whether considering facts and circumstances of the present case and even considering averments made in the plaint and even accepting all the averments made in the plaint as they are, whether the suit is barred by law of limitation or not?
6.2.As stated above, registered sale-deeds was executed by the original defendant No. 1 infavour of original defendant Nos. 3 and 4 (petitioners herein) on dated 25/08/1975. It is also required to be noted and even so pleaded /averred in the plaint that mutation entry in favour of defendant Nos. 3 and 4 on the basis of registered sale-deed was made in the revenue record vide Entry No. 1115 and not only that even in 1981 there was partition between defendant Nos. 3 and 4 and the land bearing Survey No. 380 (disputed suit land) has gone into the share of Ambalal Patel-defendant No. 4 and his name is mutated in the revenue record vide Mutation Entry No. 1283 dated 10/06/1981. As held by the Honble Supreme Court in the case of Dilboo (Smt.) (Dead) by L.Rs. [2000(7) SCC 702] Whenever the document is registered the date of registration becomes the date of deemed knowledge and in other cases where a fact could be discovered by due diligence then deemed knowledge would be attributed to the plaintiff because a party cannot be allowed to extend the period of limitation by merely claiming that he had no knowledge. Thus, when the sale deed dated 25/08/1975 was registered in the year 1975 itself and even the mutation entry was made in favour of defendant nos. 3 and 4 on the basis of the registered sale deed, immediately thereafter, the plaintiff is deemed to have the knowledge of the said transaction and by making such vague averments in the plaint that earlier he had no knowledge and he came to know about the transaction only in the 2010, by such clever drafting, the plaintiff cannot be permitted to bring the suit within the period of limitation which otherwise is barred by law of limitation as the suit challenging the registered sale deed dated 25/08/1975 has been filed after a period of 35 years. Under the circumstances and considering the aforesaid, it appears to the Court that learned trial Court has materially erred in rejecting the application Exh. 14 and in not rejecting the plaint exercising the power under Order 7, Rule 11(d) of the Code of Civil Procedure. Under the circumstances, the impugned order passed by the learned trial Court cannot be sustained and same deserves to be quashed and set aside.
2.4 The learned advocate for the petitioner also submitted that the sale deed of present petitioner was never challenged till filing of the suit and no seller can pass better title than he has and the revenue entries are only for fiscal purpose and would not decide the title of the property. It is further submitted by the learned advocate for the petitioner that even the void document or order is required to be challenged within a reasonable period. Moreover, the date of registration of the document is the date of deemed knowledge. The learned advocate for the petitioner has also submitted that as held in 2012 (3) GLR 2081 (supra) it is not open for seller to challenge the sale deed executed by him to be void as it would amount to take benefit of his own wrong. As discussed earlier, in the order dated 12/07/2013 the alleged sale deed of the petitioner-plaintiff had not been executed by respondent nos. 1 to 5/the original defendant nos. 1 to 5 i.e. the original owners of the land but the same had been executed by the alleged power of attorney holder of the original owner of the land namely Mr. Dinesh Kumar Chunnilal Patel.
2.5 As discussed in paragraph nos. 3 and 4 of the order dated 12/07/2013, when it has come to the knowledge of the respondent nos. 1 to 5 original defendant nos. 1 to 5 regarding the suit registered sale deed, they have categorically contended that the defendant nos. 1 to 5 have never executed the alleged power of attorney and the said power of attorney at mark 4/6 is forged document. In this context, it is important to note that after the alleged sale deed dated 09/05/1990, the revenue entries had not been mutated in revenue records, meaning thereby, the respondent nos. 1 to 5 were unaware about the alleged forged power of attorney as well as the alleged registered sale deed dated 09/05/1990.
2.6 Under the above circumstances, the ratio laid down in above-referred citations is not applicable to the case on hand, more particularly, because at the stage of exhibit-5, the petitioner-plaintiff has not taken any care to produce the affidavit of power of attorney holder namely Dinesh Kumar Chunnilal Patel nor has he produced the affidavit of two witnesses of the said power of attorney as discussed at length in the order dated 12/07/2013.
3. Speaking to minutes is accordingly allowed and the order dated 12/07/2013, passed by this Court is modified to the aforesaid extent.
(G.B.SHAH, J.) Manoj Page 9 of 9