Gujarat High Court
Hirjibhai Jivanbhai vs Sadhu Magniramji Kashiramji on 10 May, 2019
Equivalent citations: AIRONLINE 2019 GUJ 191
Author: J. B. Pardiwala
Bench: J.B.Pardiwala
C/FA/124/2014 CAV JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/FIRST APPEAL NO. 124 of 2014
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE J.B.PARDIWALA
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1 Whether Reporters of Local Papers may be allowed to NO
see the judgment ?
2 To be referred to the Reporter or not ? NO
3 Whether their Lordships wish to see the fair copy of the NO
judgment ?
4 Whether this case involves a substantial question of law NO
as to the interpretation of the Constitution of India or any
order made thereunder ?
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HIRJIBHAI JIVANBHAI
Versus
SADHU MAGNIRAMJI KASHIRAMJI & 2 other(s)
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Appearance:
MR KUNAL S SHAH(5282) for the Appellant(s) No. 1,1.1,1.2,1.3,1.4
MR MIG MANSURI(444) for the Appellant(s) No. 1.1,1.2,1.3,1.4
MR KIRTIDEV R DAVE(3267) for the Defendant(s) No. 2,3
MR P P MAJMUDAR(5284) for the Defendant(s) No. 1.1,1.2,1.3,1.4,1.5
MR RAHUL K DAVE(3978) for the Defendant(s) No. 2,3
MR SP MAJMUDAR(3456) for the Defendant(s) No. 1.1,1.2,1.3,1.4,1.5
NOTICE NOT RECD BACK(3) for the Defendant(s) No. 1
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CORAM: HONOURABLE MR.JUSTICE J.B.PARDIWALA
Date : 10/05/2019
CAV JUDGMENT
1. This First Appeal under Section96 of the Code of the Civil Procedure, 1908 [for short 'The C.P.C.'] is at the instance of the original Page 1 of 30 Downloaded on : Sat Sep 07 23:17:10 IST 2019 C/FA/124/2014 CAV JUDGMENT plaintiffs and is directed against the judgment and decree passed by the Principal Senior Civil Judge, Surendranagar dated 30th November, 2013 below Exh.44 in the Special Civil Suit No.30 of 2011, by which, the learned Civil Judge rejected the plaint under Order VII Rule 11(d) of the C.P.C. on the ground that the suit preferred by the plaintiffs is time barred.
2. As this First Appeal arises from an order passed by the Civil Court rejecting the plaint, I deem it appropriate to incorporate the true English Translation of the plaint of the Special Civil Suit No.30 of 2011.
[1] Legal heirs of late Hirjibhai Jivanbhai:
(1) Ghanshyambhai Hirjibhai, Aged about 29 Years,
(2) Aashishbhai Hirjibhai, Aged about 27 Years,
(3) Labhuben Hirjibhai, Aged about 52 Years
(4) Jashuben Hirjibhai, Aged about 32 Years
All residing at: Sheri No.7,
Naranpara, Ratanpar
. . . . . . . . . . . The Plaintiffs
Versus
[1] Legal heirs of Sadhu Magniramji Kashiramji:
(1) Atulbhai Magniramji Dudhrejia, Aged about 50 Years
(2) Harishchandrabhai Magniramji Dudhrejia,
Age about 48 years
(3) Anilbhai Magniramji Dudhrejia, Aged about 45 Years
(4) Mrudulaben Magniramji Dudhrejia,
Aged about 43 Years
All residing at: 14, Girivihar Society,
Nr. Deshalbhagat Ni Vaav, Surendranagar.
[2] Rajeshbhai Nagindas Shah, Aged about 45 Years,
Residing at: Paavan, Nr. Swastik Chowk, Surendranagar [3] Himanshu Girdharlal Parmar [4] Gaurav Girdharlal Parmar Both residing at: Dal Mill Road, Surendranagar. . . . . . . . . . . . The Respondents Sub: Suit for cancellation of sale deed, to obtain permanent Page 2 of 30 Downloaded on : Sat Sep 07 23:17:10 IST 2019 C/FA/124/2014 CAV JUDGMENT injunction order and for common joint declaration.
The facts of this suit of the plaintiffs are as under:
1) The ancestral field is owned and occupied by the plaintiffs situated in the village: Ratanpar of Wadhwan Taluka and description and details thereof are given hereunder. Presently, it is owned and occupied by the plaintiffs jointly. Agricultural work, cultivation work and sowing work etc. are done by the plaintiffs and we are taking yield out of the same. Last year, the plaintiffs had sowed cottonseed in the land in question and recently also, we have tilled the said field by plough.
2) Description and four directions of ancestral field in question owned and occupied by us, are as under: Disputed field situated at Village: Ratanpar of Taluka: Wadhwan of District: Surendranagar, bearing Latest Revenue Survey No.220 and Old Revenue Survey No.273 having total area admeasuring Acre30, Gunthas12.
North : Farm of Koli Patel Mathurbhai South : Bhogavo Dam East : Boundary of Dudhrej West : Village limit of Khamisana 3) The said field was granted by the State to my forefather Koli
Sukhabhai Mithabhai in the year 1992 by Deed No.85. Since then our forefather Sukhabhai Mithabhai was the owner of the land in question and upon his demise, our grandfathers Jivanbhai Sukhabhai and Narshibhai Sukhabhai became the owners of the land in question. Out of them, Narshibhai Sukhabhai died and our father Hirjibhai Jivanbhai was illiterate. He had not made his signature anywhere and he did not even know to make signature. He died in the year 2003 and thus, we, the plaintiffs became the owners and occupier of the land in question.
4) Somehow, the said field was entered in the name of government and therefore, to remove the said effect, our illiterate father inquired with Magniram Kashiram, who belonged to our native village: Chamaraj and was knowledgeable as to what should be done in this matter and he stated that you give me all papers and I will initiate the procedure. Thus, the said Magniram Kashiramji had taken all the papers of the land in question. He stated that let us initiate the procedure and I will call you wherever your presence would be required. Our father was unaware that Magniramji initiated the procedure in his name and upon asked by our father as Page 3 of 30 Downloaded on : Sat Sep 07 23:17:10 IST 2019 C/FA/124/2014 CAV JUDGMENT to what is the status of the case, he used to state that the case is pending and final outcome has not yet arrived. Thereafter, he did not let our father come to know as to what procedure he carried out.
5) Recently, we came to know that Magniramji Kashiramji, father of respondent no.1 has created fabricated and bogus deed for the land in question i.e. land admeasuring Acre30, Gunthas12 of Survey No.273 (New Survey No.220) and though my father was illiterate, he put fake signature of my father instead of his thumb impression in order to usurp our field and executed fake, bogus and fabricated Deed No.1278 dated 20/04/1985 and on the basis of the same, the respondent no.1 got revenue entry mutated in his name and no notice thereof under Section135 of the B.L.R.C. was served. Thereafter, the respondent no.1 had sold land admeasuring Acre5, Gunthas00 out of the land in question to the respondent no.2 by Registered Sale Deed No.198 dated 21/01/2000. Thereafter, the respondent no.2 had sold land admeasuring Acre2, Gunthas00 out of the land in question to the respondent no.34 by Registered Sale Deed No.495 dated 30/01/2010. We came to know it upon inquiring the same. Respondents of this case, in collusion with each other, have created fabricated document in the name of our father and got mutation entry entered and this way, the respondents are attempting to occupy our field. Therefore, we have filed this suit before you to cancel/get canceled the said Deed and to get relief that the respondents do not disturb, interfere, obstruct in our ownership and occupancy and that we may not get deprived of our lawful possession from the said field.
(6) This document is not true and genuine and our father has not made any signature in it. Our father did not know how to make a signature. Even though, after making a bogus and fake signature in the name of our father, Magni Ramji Kashi Ramji has fraudulently created this bogus document. We have inherited this land in dispute from our ancestors and our father was illiterate and he never knew how to make a signature and he has never made signature at any place. Even though, fake signature in the name of our father has been made in saledeed No. 1278 dated 20/4/1985, which was concocted by Magni Ramji Kashi Ramji, father of Respondent No. 1 and, thereby, a fake, bogus and fraudulent document has been created in the name of our father. Our father has never handed over the possession of the said land and our father has never taken any consideration and Magni Ramji Kashi Ramji has never paid amount of consideration and these documents are not genuine. Respondent No. 1 Magni Ramji Kashi Ramji is a very clever and influential person and he was aware that our father Hirjibhai is illiterate and he would not come to know about the fact. By believing such, a totally fake, bogus and fraudulent document has Page 4 of 30 Downloaded on : Sat Sep 07 23:17:10 IST 2019 C/FA/124/2014 CAV JUDGMENT been created. Our father has never sold out this disputed farm to anyone when he was alive and he has never handed over its possession to anyone and he has never taken even a single paisa towards its consideration.
(7) On 10/4/2011, Respondent No. 1(1) had told us the Plaintiffs that saledeed in respect of this land has been executed by your father, therefore, now onwards, you do not carry out agricultural work in it. He had instructed not to do agricultural work now onwards, and in this way, Respondent Nos. 1 to 4, in collusion with one another, intend to grab this land belonging to us the Plaintiffs on the basis of fake and fabricated document. We apprehend that at any time, they might deprive us the Plaintiffs of its possession. Respondent Nos. 1 to 4 have, in collusion with one another, given threats to deprive us of the possession of our farm in question and to sell out the land in the suit to other persons. Therefore, we also have fear of being deprived from the possession of this farm in dispute from them. Hence, we have been compelled to join them as Respondents in this case, so that Respondent Nos. 1 to 4, in collusion with one another and by illegally taking the law in their hand, do not deprive us the Plaintiffs from the possession, occupancy and ownership of this farm in question. Hence, we have been compelled to file this suit by joining all these Respondents. Therefore, if Respondent Nos. 1 to 4 have created any other interest other than as stated by us, it is not in our knowledge, but Respondent Nos. 1 to 4 have been joined as Respondents in this suit as of now, so that they, in collusion with one another, do not deprive us from the possession because injunction orders can also be obtained against them.
(8) Respondent Nos. 1 to 4 are very rich and influential and we the Plaintiffs are poor and without any shelter of elders. We have been helpless after the death of our father. Therefore, we do not have any other alternative other than taking help of the law, so that the Respondents do not cause any harm to the farm in dispute, which is under our ownership, possession and occupancy. After the death of our father and continuously since the time before that, I Plaintiff No. 1 am doing work of cultivating in our ancestral lands and taking yield from it. It has never happened that our father had executed any such document in the name of the father of Respondent No. 1 and in this way, the father of Respondent No. 1 has fraudulently created this fake and bogus document. He does not have any rights of ownership or possession in respect of the said land. Respondent Nos. 1 to 4 have never had possession of this farm and it has never happened that Respondent Nos. 1 to 5 have done agricultural work or taken yield from it. In fact, Magni Ramji Kashi Ramji, father of Respondent No. 1, has fraudulently created and executed saledeed Page 5 of 30 Downloaded on : Sat Sep 07 23:17:10 IST 2019 C/FA/124/2014 CAV JUDGMENT No. 1278 dated 20/4/1985. Therefore, Respondent Nos. 1 to 4 do not have any rights of ownership or possession in respect of this farm and we the Plaintiffs have inherited rights and interests in respect of the farm (land) in question from our ancestors. Respondent Nos. 1 to 4 are also aware of such fact for many years. Despite the same, Respondent Nos. 1 to 4 have created an absolutely fake and bogus document in respect of the said land, which is illegal and void. This document is not binding to us the Plaintiffs in any way because in view of us the Plaintiffs, it is void and illegal.
In fact, our father has not executed any such document and the impugned deed does not bear true signature of Plaintiff's father Hirjibhai Jivanbhai. Therefore, it is considered void as per the view of Plaintiffs, it is not binding to us. Therefore, Respondent no.1 to 4 do not receive any right of ownership, occupancy, and interest or share on the impugned field.
(9) Intention of Respondent No.1 to 4 is to deprive Plaintiffs of impugned field's ownership and occupancy because of the deed which came to existence after a long period. Magniramji Kashiramji has fabricated a totally false and bogus deed bearing counterfeit signature done by him in order to misappropriate valuable property of Plaintiffs. Therefore, all these deeds are prima facie void. On the basis of the said deeds, Respondents do not get any right or ownership. Despite that, Plaintiffs fear that they may transfer the same to others and such threat has also been issued to Plaintiffs. Therefore, the cause of this suit has arisen.
(10) The cause of this suit has arisen when Respondents issued threats to not to allow us enter or work in the field and that they would sell off the disputed fields to others on 10/04/2011, and the same continues even after that. Therefore, this suit is within time limit.
(11) The cause of this suit has arisen at village Ratanpar, Taluka Wadhvan which fall under your jurisdiction. Therefore, your Court has jurisdiction to hear the suit.
(12) Half court fee of Rs.9575/ considering the estimate for cancellation of the deed at Rs.5,51,000/ and Rs.300/ for permanent injunction, Rs.300/ for declaration, total court fee of Rs.9775/ is affixed on this suit. Court fee of Rs.2 and process fee or Rs.10/ is affixed thereon. (1) Deed no.1278, Rs.1000/, (2) Deed No.198, Rs.2,50,000/, (3) Deed No.495, Rs.30,000/ amounting to total Rs.5,51,000/.
Page 6 of 30 Downloaded on : Sat Sep 07 23:17:10 IST 2019 C/FA/124/2014 CAV JUDGMENT(13) Therefore, it is humbly prayed that:
(1) To pass permanent injunction order against
Respondents that they shall not enter directly or indirectly in the fields bounded and described in para2 above, and shall not act in a manner to cause harm to ownership and occupancy of Plaintiffs, and shall not create any interference, obstruction, prevention to plaintiffs or their servants from cultivating or yielding, or shall not enter into sale, mortgage, gift or any other kind of transfer, and shall not execute any deeds or documents.
(2) The field mentioned in para2 is ancestral property with possession, occupancy and ownership, wherein Plaintiffs have got right, title and interest by birth. Therefore, declaration be issued against Respondents that Respondents do not get any rightinterest or share by way of bogus and fraudulently created deed.
(3) Respondent no.1 Magniramji Kashiramji has fraudulently executed bogus registered sale deed no.1278 dated 20/04/1985 in favour of Respondent's father Herjibhai Jivanbhai for the land located in the sim of Ratanpar bearing old Survey no.273 and new Survey no.220 paiki land admeasuring 30 acres 12 gunthas, by putting counterfeit signature fraudulently and registered the same at the office of SubRegistrar, Wadhvan. Pass the order to revoke the said deed.
(4) Thereafter, subsequently registered sale deed no.198 dated 21/01/2000 executed by Respondent no.1 (1 to 4) in favour of Respondent No.2 for the land located in the sim of Ratanpar bearing (old survey no.273) new Survey no.220 paiki land admeasuring 5 acres and 00 gunthas is bogus and created fraudulently. It is registered at SubRegistrar office, Surendranagar. Pass the order canceling the said deed.
(5) Registered sale deed no.495 dated 30/01/2010 executed by Respondent no.2 in favour of Respondent no.34 for the land located in the sim of Ratanpar bearing (old R.S.No.273) new Survey No.220 paiki land admeasuring 2 acres and 00 gunthas is bogus and was created fraudulently. It is registered at SubRegistrar office, Surendranagar. Pass the order to cancel the said deed.
(6) Direct Registrar, Wadhvan to cancel the deed mentioned in Page 7 of 30 Downloaded on : Sat Sep 07 23:17:10 IST 2019 C/FA/124/2014 CAV JUDGMENT above prayer no.3 and direct the Sub Registrar, Surendranagar to cancel the deeds mentioned in prayer no.3 and 4. Direct Mamlatdar, Wadhvan Mamlatdar office regarding the same.
3. Thus, it appears from the pleadings in the plaint referred to above that the subject matter of dispute between the parties is with respect to the land bearing revenue survey no.220 [old revenue survey no.273] situated in the sim of village Ratanpar, TalukaWadhwan, District Surendranagar. It is the case of the plaintiffs that they are the lawful owners of the suitland and are in possession of the same. According to the plaintiffs, the land in question is agricultural and they are cultivating the land and earning their livelihood from the income derived from such agricultural operations. According to the plaintiffs, inadvertently in the revenue records, the name of Government came to be mutated as the owner of the land.
It is the case of the plaintiffs that their father Late Hirjibhai Jivanbhai was an illiterate person. For the purpose of correcting the revenue records, the original papers of the land in question including the titledeeds were handed over to the father of the defendants viz.Sadhu Magniramji Kashiramji. According to the plaintiffs, Late Sadhu Magniramji Kashiramji was to initiate appropriate proceedings for the correction of the revenue records and that is how in good faith, the original title deeds of the suitland were handed over by the father of the plaintiffs to the father of the defendants. According to the plaintiffs, it came to their knowledge that Late Sadhu Magniramji Kashiramji had fraudulently got a bogus and false saledeed executed in his favour with respect to the suitland by forging the signature of the father of the plaintiffs. According to the plaintiffs, their father was absolutely illiterate and used to put his thumb impression and he was not able to put his Page 8 of 30 Downloaded on : Sat Sep 07 23:17:10 IST 2019 C/FA/124/2014 CAV JUDGMENT signature. They came to learn that the bogus registered saledeed bearing no.1278 came to be registered on 20/04/1985 in the office of the Subregistrar and Sadhu Magniramji Kashiramji got his name mutated in the revenue record. According to the plaintiffs, no notice under Section135(d) of the Bombay Land Revenue Code was issued.
It is further alleged in the plaint that the legal heirs of Late Sadhu Magniramji Kashiramji thereafter transferred the suitland in favour of the defendant no.2 by a registered saledeed bearing no.198 dated 21/01/2000. The original defendant no.2 in turn transferred the land in favour of the defendants nos.3 and 4 by a registered saledeed no.495 dated 30/01/2010. It is the case of the plaintiffs that all these facts came to their notice just before the suit came to be instituted. The plaintiffs have alleged fraud and forgery in the first saledeed alleged to have been executed by the father of the original defendant no.1.
4. The legal heirs of late Sadhu Magniramji Kashiramji [original defendant no.1] preferred an application Exh.44 in the Court of the Principal Senior Civil Judge, Surendranagar and prayed for rejection of the plaint under Order VII Rule 11(d) of the C.P.C. on the ground that the suit preferred by the plaintiffs for cancellation of the saledeeds is hopelessly time barred. The main grounds urged in the application Exh.44 are as under:
2. It is respectfully stated and submitted that the present plaint is liable to be rejected on the ground of limitation since on reading of the plaint and on perusal of the prayers of the plaint, it is crystal clear that the suit is barred by limitation. It is submitted that in Paragraph No.3 of the plaint, the original plaintiffs have stated that their father had expired in 2003. It is pertinent to Page 9 of 30 Downloaded on : Sat Sep 07 23:17:10 IST 2019 C/FA/124/2014 CAV JUDGMENT note that father of the plaintiffs had already executed registered sale deed in favour of father of the present applicants on 20.04.1985. It is also pertinent to note that the said saledeed was a registered saledeed and thus, registered document is deemed to be a public knowledge. It is submitted that therefore, the period of limitation in the present case, as per Article 58 of the Limitation Act, would start from 20.04.1985. It is submitted that since execution of a registered document is a deemed public knowledge, the period of limitation would start from the date of the registration. It is submitted that the said ratio has been laid down by Hon'ble Gujarat High Court in Civil Revision Application No.186 of 2011 vide order dated 10.04.2012 and has also been laid down by Hon'ble Supreme Court of India in 2000 (7) SCC
702.
3. It is respectfully stated and submitted that the plaintiffs in Paragraph No.4 of the plaint have further averred that their father had signed certain papers, which he could not understand because he was not very claver and have further averred that the said papers were signed by their father because the suit land in question was wrongly shown as Government land. It is most pertinent to note that the father of the plaintiffs has himself executed registered sale deed in favour of the present applicants on 20.04.1985.
4. It is respectfully stated and submitted that thereafter proceedings under Section 37 of the Bombay Land Revenue Code, 1879 were initiated by the present applicants to get the land back from the State Government since it was wrongly shown as a State Government land.
Page 10 of 30 Downloaded on : Sat Sep 07 23:17:10 IST 2019 C/FA/124/2014 CAV JUDGMENT5. It is most pertinent to note that the Mamlatdar by order dated 27.02.1987 had held that the suit land in question is a Government land, the said order of the Mamlatdar was challenged by the mother of the present applicants before the Deputy Collector (since father of the present applicants expired in the year 1986) and not by the father of the plaintiffs and thus, the father of the plaintiffs, who had already executed a registered saledeed in favour of father of the present applicants, was obviously not interested in fighting a litigation with the State Government for the suit land in question. It is submitted that in appeal preferred by mother of the present applicants, the Deputy Collector vide order dated 24.08.1989 remanded the matter to the Mamlatdar. It is submitted that thereafter, the Mamlatdar vide order dated 11.06.1990 again passed an order against the present applicants. It is submitted that the mother of the present applicants preferred an appeal before the Deputy Collector, which was rejected on 01.07.1991. It is submitted that the said was challenged by the mother of the present applicants before the District Collector by way of an appeal, which was rejected on 03.11.1992 and thereafter finally Revision Application was preferred before the Hon'ble Gujarat Revenue Tribunal, which was allowed on 01.08.1997 categorically holding that the suit land in question is in occupation, possession and ownership of the mother of the present applicants.
6. It is most pertinent to note that the said order of Hon'ble Gujarat Revenue Tribunal has become final and father of the plaintiffs also rightly did not challenge the same since he had already parted with the title of the suit land in question.
Page 11 of 30 Downloaded on : Sat Sep 07 23:17:10 IST 2019 C/FA/124/2014 CAV JUDGMENT7. It is further respectfully stated and submitted that in the revenue record, Entry No.3528 was mutated on 20.10.1997 reflecting the order of Hon'ble Gujarat Revenue Tribunal. It is submitted that the said order in the revenue record is in existing since 1997 and the same can also be termed as public knowledge and/or notice. Thus, even if the said date of 1997 is concerned, the present suit is hopelessly barred by limitation.
8. It is pertinent to note that in the revenue record, name of the present plaintiffs father was never shown after 1985. It is also pertinent to note that after the father of the plaintiffs expired, the plaintiffs wanted to extort money from the present applicants and therefore, on 21112006 a public notice was issued by the plaintiffs regarding the suit property, which also clearly reveals that the plaintiffs were really aware about the transaction in question. It is submitted that the suit is on that ground also clearly barred by law of limitation.
9. It is further respectfully stated and submitted that the present applicants have in fact sold part of land to defendant No.2 on 02.11.2000 by a registered saledeed and his name has also been mutated in the revenue record immediately. Thus, even that is deemed public knowledge/ notice and, therefore also, the suit is clearly barred by limitation.
10. It would be pertinent to mention that cause of action arises only once and successive causes of action would not make the suit within limitation. It is submitted that the said has also been laid down by Hon'ble Supreme Court of India in case reported in AIR 2011 SC 3590. Thus, on that ground also, the plaint is liable to Page 12 of 30 Downloaded on : Sat Sep 07 23:17:10 IST 2019 C/FA/124/2014 CAV JUDGMENT be rejected.
11. It is respectfully stated and submitted that in the proceedings under Section 37 of the Gujarat Land Revenue Code, 1879 rojkam was made on 17.02.1986 by the Circle Officer showing possession and occupation of the present applicants' father. It is submitted that the said rojkam was signed by the original plaintiffs. Moreover, in the said proceedings, statement of father of the present plaintiffs was also taken wherein he has clearly admitted of having sold the land on 20.04.1985. Thus, it is submitted that the said would also make the present suit clearly barred by limitation.
12. It is pertinent to note that the plaintiffs in Paragraph No.5 of the suit have admitted the fact regarding further sale deed by the present applicants on 21.01.2000. It is submitted that all these transactions were within the knowledge of the plaintiffs and, therefore, from the plaint itself it is clear that the suit is barred by law of limitation. It is further submitted that for the suit land in question, land acquisition proceedings had taken place and award had also been passed on 15.06.2004. It is further submitted that the said award is passed in the name of mother of the present applicants. Thus, the said proceedings of the Land Acquisition Act, 1894 clearly reveal that the land does not belong to the father of the original plaintiffs.
13. It is further respectfully stated and submitted that after proceedings under Section 37 of the Gujarat Land Revenue Code, 1879, the Circle Officer had handed over possession of the suit land in question officially to the father of the present applicants Page 13 of 30 Downloaded on : Sat Sep 07 23:17:10 IST 2019 C/FA/124/2014 CAV JUDGMENT and measurement sheet was drawn on 12.03.1999. It is submitted that all these documents are public documents and the plaintiffs cannot after 25 years alleged that the first sale made by their father in the year 1985 is invalid.
14. It is respectfully stated and submitted that on 24.08.2004 even compensation was ordered to be paid for the part of the suit land which was acquired in favour of the mother of the present applicants. It is submitted that thus, the prayers of the plaintiffs challenging the sale deed of 20.04.1985 and the subsequent sales are clearly barred by law of limitation. Moreover, the plaintiffs have no cause of action to file the present suit since at no stage the plaintiffs were in possession of the suit land.
15. It is respectfully stated and submitted that the father of the plaintiffs during his lifetime did not challenge the sale deed in favour of the present applicants' father dated 20.04.1985 and, therefore, the plaintiffs cannot take advantage of the death of their father and challenge the sale deed after 25 years.
16. It is further respectfully stated and submitted that even the criminal complaint filed by plaintiff No.1.1 on 13.05.2008 alleging fraud has been withdrawn on 30.01.2010 since after preliminary inquiry. It was found that the allegations made in the criminal complaint had no basis. It is submitted that this is a fit case to apply the ratio laid down by Hon'ble Supreme Court of India in the case reported in 1977 (4) SCC 467 wherein it has been held that claver drafting of a suit, which is otherwise barred by law of limitation, cannot bring the suit within limitation.
Page 14 of 30 Downloaded on : Sat Sep 07 23:17:10 IST 2019 C/FA/124/2014 CAV JUDGMENT5. The application Exh.44 was adjudicated by the Civil Judge and ultimately, vide order dated 30th November 2013, the Civil Judge allowed the application and rejected the plaint on the ground that the suit preferred by the plaintiffs was time barred. The relevant findings recorded by the Civil Court in its impugned order are as under:
6) Looking to the facts and circumstances of the case as well as case laws relied upon by both the parties and keeping in mind earlier order passed in this case in Civil Revi. Appli. 269/2011, passed by Hon'ble High Court, upon reading of the plaint and document produced by the plaintiff and averment made in this application, it prima facie seems that the plaintiff has filed this suit for permanent injunction to restrain the defendants from entering into the disputed land, as well as ask for declaration, to declare the saledeed registered at Sr. 1278 dtd. 20/04/1985 was fradulent, illegal and void ab initio and also claim relief to cancellation of said sale deed and ask for cancellation of subsequent sale deed executed by the defendants. The plaintiff has also averted in the plaint in Para4 that, for the unknown reason the land in dispute was muted as Govt. land in the revenue record and for the purpose to corrected out father has gave the papers of said land to the deceased Magniram, the father of the defendant no.1 for initiating the proceeding to correct the mistake taken place in revenue record, but he had initiated proceeding in his own name which was not within knowledge of father of the plaintiff. It is also averted that his father was never use his signature on any document and always use his thumb impression, while the disputed sale deed which has been alleged executed by his father in favour of Magniram Kashiram father of Defendant No.1) hearing signature of the deceased Harjibhai Jivanbhai which create prima facie doubt in execution of the sale deed. But looking to averment made in plaint para.3 it is averted that the Hirjibhai Jivanbhai was died in 2003, while looking to the alleged sale deed was registered on 20/04/1985, therefore, it primafacie seems after execution and registration of the alleged sale deed was never challenged by Hirjibhai Jivanbhai during his life time after its execution i.e. upto 18 years. Plaintiffs has also averted that they have no knowledge about the alleged sale deeds and they were cultivating the land till the date of suit, but on dt.10/04/2011 defendant came to them and restrained them from entering in the said farm and threaten them to sold this land to another. These facts are stated in the plaint para 10 of the plaint as a cause of action of this suit, but there is no any other supporting evidence regarding which shows that the defendant were cultivating the disputed land or the defendant had given him threat. On other hand it is also the case of the plaintiff that Page 15 of 30 Downloaded on : Sat Sep 07 23:17:10 IST 2019 C/FA/124/2014 CAV JUDGMENT the, for unknown reason the disputed land was mutated as Govt. Land in revenue records, which facts are leading to the judicial notice that when the land was mutated as Govt. Land, the question of cultivation of that land does not arise. On this point LA Mr. Dhruv relied upon the judgment of our own Hon'ble High Court in Civil Revision Application no.186 of 2011 delivered on 10/4/2012, in case of Becharbhai Zaverbhai Patel Vs. Jashbhai Shivabhai Patel, in that case the sale deed was executed in 25/8/1975 and plaintiff has filed that suit challenging the sale deed in year 2010 after a period of 35 years in that case Hon'ble High Court, relying upon judgment of the Hon'ble Supreme Court in the case of Dilboo (smt) (dead) by Lrs V/s. Dhanraji and others reported in (2000) 7 SCC 702, in which Hon'ble Supreme Court has held that whenever the document is registered, the date of registration becomes the date of deemed knowledge and in other case 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. Hon'ble Gujarat Court has also observed in above mention case that, when the sale deed is registered immediately thereafter the plaintiff is deemed to have the knowledge of the said transaction and by making such vague averment in the plaint that earlier he had no knowledge and he came to know about the transaction only in 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 is challenging the registered sale deed after 35 years. Here in this case on hand the registered sale deed in question was registered on 20/04/1985 and the possession was also handed over to the purchaser, i.e. defendant no.1's father and subsequent sale deed for some portion of the disputed land was registered on 21/1/2000 and possession was also handed over to subsequent purchaser, therefore merely making such averment that she had no knowledge of such transaction without supporting evidence is nothing but clever drafting, mere on such averment the plaintiff was not permitted to brought this suit. LA Mr. Dhruv has argued that the registered sale deed sought for cancellation, first one of it was registered on dated 20/04/1985 which is a 28 years old registered document and subsequent one was registered on dated 20/01/2000 which is also 11 year old registered document. It has been argued by LA Mr. Dhruv that as per Art.59 of the Limitation Act, suit for cancellation of sale deed may be filed within three years of its registration, therefore here, there is clear bar of limitation to file this suit, hence the plaint may please be rejected under Order 7 rule 11(d) of the Civil Procedure Code. Mr. Dhruv argued that the registered document itself being public document, deemed notice of its execution, as per Sec.3 of the Transfer of Property Act. Therefore, it cannot be said that it was not within his knowledge. Therefore the statement made in plaint is nothing but vague statement made by the plaintiff to bring his suit within Page 16 of 30 Downloaded on : Sat Sep 07 23:17:10 IST 2019 C/FA/124/2014 CAV JUDGMENT limitation, while on documentary evidence on record of the court, shows that the possession of the suit property was handed over to purchaser by virtue of sale deed itself. Therefore, the oral statement cannot be relied upon when the document speaks itself. Looking to the averment made in plaint, that their father had never executed the alleged sale deed in favour of the father of the defendant no.1. While the alleged sale deed was registered sale deed and alleged had been executed by the father of the plaintiff himself and it has been never challenged during his life time then now it cannot be challenged by the plaintiff.
7) Other point ground fore the rejection of plaint taken by the defendant in this application, are that after the execution of sale deed, the disputed land was mutated as Govt. Land by mistake and for correction of this mistake, the father of the defendant and then mother of the defendant has initiated revenue proceeding before Mamlatdar, Collector and then to Revenue Tribunal and got the Order in favour of her, and in pursuance of the order she got repossession in 1997 and for that effect mutation entry was also carried out in revenue record, it is also averted in this application that then after the some portion of the disputed land was acquired from the defendants by the Land Acquisition Officer for the purpose of construction of Canal under Narmada Yojana, those fact gives more weight to the case of defendant, another important point raised here in this application is that the earlier the plaintiff and filed private criminal complaint of forgery regarding this transaction before the Chief Judicial Magistrate Court at Surendranagar on dated 13/5/2008 stating that he has made complaint before police on dt.26/3/2008 but police had nothing done hence he has filed this complaint before court, late on private complaint was also withdrawn. Certified copies of criminal complaint, withdrawal pursis as well as police complaint were produced herewith at mark 32/3 and those are on record of this case, which documentary evidence are also supporting to the case of defendant that, plaintiff has also alleged in his private complaint that the defendant had also got compensation for the land in dispute from the Acquisition Agency this is clear admission of having knowledge of possession and title of defendant. Those facts regarding Acquisition of land are alleged in the complaint but surprisingly those facts are not mentioned in this plaint and it is suppressed herein plaint as well as the plaintiff has suppressed the facts regarding complaint for forgery. If the fact of regarding criminal complaint is consider then police complaint was filed on 26/3/2008 and on filing of complaint plaintiffs have knowledge of all the transaction, the plaintiff has admitted the fact that he has filed the complaint and explained that the accused was expired hence the complaint was withdrawn. But when the plaintiff has admitted the fact of filing of complaint and in that complaint, he has stated that he had made complaint before police, which is produced here at mark 32/3 Page 17 of 30 Downloaded on : Sat Sep 07 23:17:10 IST 2019 C/FA/124/2014 CAV JUDGMENT which is regarding the disputed land, which also clearly reveals that the plaintiffs were really aware about the transaction in question, then he has to file this suit within three years of first complaint made before police i.e. 26/3/2008 therefore he has to file this suit on or before dtd.25/3/2011, while plaintiff has filed this suit on dt.19/4/2011, which is clearly barred by law of limitation, this fact was not stated in the plaint but when it is admitted by the plaintiff in his reply, then in my humble view, it should be considered for the determination of this application under Order7 rule 11(d). Therefore, when the complaint was lodged before Court the complainant have knowledge regarding the transaction pertaining to this land, revenue proceeding for that land as well as the acquisition proceeding and the notification regarding the acquisition of lands. Another point vehemently argued by the defendant's LA Mr. Dhruv is that, the plaintiffs had published a public notice on Dtd.21/11/06 regarding suit property, which also clearly reveals that the plaintiffs were really aware about the transaction in question, therefore, on this ground the suit is also clearly barred by law of limitation. But those facts are stated in this application and not in plaint and looking to the establishment principle Division Bench of our own High Court in case of Bhupendrabhai Hasmukhlal Dalwadi Vs. Savitriben Ganumal Krishnani reported in 2010 (3) GLH page 596 as well as in case of Pravin Ratilal Share Vs. Sagar Drugs & Pharmaceuticals reported in 2011 JX (Guj.) 734, while considering this application under Order VII Rule 11, the averment made in plaint only can be considered, therefore those facts mentioned in this application supported with documentary evidence, are not be considered here, hence it does not required to more discussion.
8) As above all discussion, I found that the plaintiff has brought this suit for cancellation of Registered Sale Deed, which was registered on 20/4/1985 at Sr.1278 in Sub Registrar Wadhwan and second one is registered on Sr. No.198 dtd.21/1/2000. Looking to the ratio laid down by the Hon'ble Supreme Court in case of Khatri Hotels Private Limited Vs. Union of India reported in (2011) 9 SCC 126, period of limitation would commence when eight to sue accrues. Looking to the time limit for the suit for cancellation of sale deed, is 3 (three) year, while plaintiff brought this suit 19/4/2011, which is time barred and as per sec.3 of the Transfer of Property Act, that the registered sale deed is being public document and deemed notice of its execution, therefore, plea taken by the plaintiff that he has no knowledge regarding the sale deed and they are cultivating the suit land and the defendant had restrained him on dt.10/4/2011 and threaten him to sold out the land, if the plaintiff was so threaten by the defendants, he obviously file complaint against the defendants, but here the plaintiff has neither produced such complaint nor plead such facts that he has filed complaint for such threat, in absence of such facts the cause of action mentioned in the plaint is nothing but cleaver drafting and which is not Page 18 of 30 Downloaded on : Sat Sep 07 23:17:10 IST 2019 C/FA/124/2014 CAV JUDGMENT believable without supporting evidence and plaintiff had also suppressed material facts of the record regarding the revenue proceeding, acquisition proceedings, criminal complaint filed by him and also public notice published by the plaintiff which are material facts for disclosing cause of action. Therefore in light of the decision of our own Hon'ble High Court in case of Kanjibhai Bhagwanjibhai Patel Vs. Nanduben Shamjibhai Sorathiya in Civil Revision Appli. 57/2012 to 66/2012 relied by the defendants, now reported in 2013 (1) GLR page 51, the plea taken by the plaintiff is nothing but clever drafting to brought this suit within the period of limitation, therefore, I found that the suit filed by the plaintiff is time barred as per law of limitation.
6. Being dissatisfied with the judgment and decree passed by the Civil Judge rejecting the plaint, the original plaintiffs have come up with this appeal.
7. Mr. Mansuri, the learned counsel appearing for the plaintiffs vehemently submitted that the Civil Judge committed a serious error in rejecting the plaint on the ground of limitation. Mr. Mansuri would submit that whether the suit is barred by the period of limitation, is a mixed question of law and fact. Such a mixed question of law and fact can be adjudicated only after the parties lead appropriate evidence. According to Mr. Mansuri, the case is one of fraud and therefore, there is no question of applying the principle of limitation. According to Mr. Mansuri, there is not a single averment in the plaint, on the basis of which, it could be said that the suit preferred by the plaintiffs is time barred. Mr. Mansuri would submit that for the purpose of rejecting the plaint, the defence of the defendants, howsoever strong, cannot be taken into consideration. In such circumstances referred to above, Mr. Mansuri prays that there being merit in this first appeal, the same be allowed and the order passed by the Civil Judge be quashed and set aside.
8. On the otherhand, Mr. P.P. Majmudar, the learned counsel appearing for the original defendant no.1 and Mr. Rahul K. Dave, the Page 19 of 30 Downloaded on : Sat Sep 07 23:17:10 IST 2019 C/FA/124/2014 CAV JUDGMENT learned counsel appearing for the original defendants nos.2 and 3 has vehemently opposed this First Appeal. Both the learned counsel submitted that no error not to speak of any error of law could be said to have committed by the Civil Court in rejecting the plaint. It is vehemently submitted that the suit came to be filed after a period of almost 28 years. It is submitted that the plaintiffs could be said to have deemed knowledge about the registration of the saledeed and in such circumstances, they ought to have preferred the suit within three years from the date of the registration of the first saledeed in the year 1985. It is submitted that as the suit could be said to be hopelessly time barred, the plaint was rightly rejected by the Civil Judge. In such circumstances referred to above, both the learned counsel have prayed that there being no merit in this First Appeal, the same may be dismissed.
ANALYSIS:
9. Having heard the learned counsel appearing for the parties and having gone through the materials on record, the only question that falls for my consideration is whether the Civil Judge committed any error in rejecting the plaint on the ground that the suit is time barred.
10. It cannot be gainsaid that the plaint could be rejected under Clause (a) of Order VII, Rule 11, if the plaint does not disclose any cause of action, and under Clause (d) thereof, if the suit appears from the statement in the plaint to be barred by any law. In the instant case, the plaintiffs have instituted the suit alleging that the suitproperty was owned by their father and on demise of their father, they inherited the property and they have undivided share in the same. According to the plaintiffs, the original defendant no.1 fraudulently got a bogus saledeed executed in his favour by forging the signature of their father. It is the Page 20 of 30 Downloaded on : Sat Sep 07 23:17:10 IST 2019 C/FA/124/2014 CAV JUDGMENT specific case of the plaintiffs that their father was an illiterate person and he never used to put any signature on any document. It is the specific case of the plaintiffs that their father used to affix his thumb impression if at all it was necessary. The plaintiffs have stated that they instituted the suit as soon as they came to know about the sale transactions. The plaintiffs have thus categorically stated about the cause of action and hence, it cannot be said that the plaint did not disclose any cause of action.
11. It is true that if on a meaningful - not formal - reading of the plaint, it is manifestly found to be vexatious and meritless, not disclosing a clear right to sue, the Court should exercise its power under Order VII Rule 11, CPC, taking care to see that the ground mentioned therein is fulfilled, and that if clever drafting has created the illusion of a cause of action, the Court should nip it in the bud at the first hearing by examining the party searchingly under Order X CPC, as held by Supreme Court in case of T. Arivandandam Vs. T. V. Satyapal and Anr., reported in AIR 1977 SC 2421. However, the Court is not competent to make an elaborate inquiry into the doubtful or complicated questions of law and fact, to ascertain whether the allegations are true or not or whether the plaintiffs would succeed or not in the suit, while deciding the application under Order VII, Rule 11. It has been observed by the Supreme Court in the case of Liverpool & London S. P. & I. Association Ltd. Vs. M. V. Sea Success I and Another, reported in (2004) 9 SCC 512 that "146. It may be true that Order 7 Rule 11(a) although authorises the court to reject a plaint on failure on the part of the plaintiff to disclose a cause of action but the same would not mean that the averments made therein or a document upon which reliance has been placed although discloses a cause of action, the plaint would be rejected on the ground that such averments are not sufficient to Page 21 of 30 Downloaded on : Sat Sep 07 23:17:10 IST 2019 C/FA/124/2014 CAV JUDGMENT prove the facts stated therein for the purpose of obtaining reliefs claimed in the suit. ..."
12. So far as the rejection of plaint under Clause (d) of Order VII, Rule 11 is concerned, it is to be noted that the statement in the plaint must show without addition or subtraction that it is barred by any law. In the case of C. Natarajan Vs. Ashim Bai and Anr., reported in AIR 2008 SC 363, the Supreme Court while dealing with the issue whether the plaint could be rejected on the ground of being barred by law of limitation, held in paragraphs 7 and 8 as under: "7. An application for rejection of the plaint can be filed if the allegations made in the plaint even if given face value and taken to be correct in their entirety appear to be barred by any law. The question as to whether a suit is barred by limitation or not would, therefore, depend upon the facts and circumstances of each case. For the said purpose, only the averments made in the plaint are relevant. At this stage, the court would not be entitled to consider the case of the defence. {See [Popat and Kotecha Property v. State Bank of India Staff Association [(2005) 7 SCC 510]}.
8. Applicability of one or the other provision of the Limitation Act per se cannot be decisive for the purpose of determining the question as to whether the suit is barred under one or the other article contained in the Schedule appended to the Limitation Act."
13. In yet another judgment of the Supreme Court in the case of Balasaria Construction (P) Ltd. Vs. Hanuman Seva Trust & Ors., reported in (2006) 5 SCC 658, it has been observed as under: "After hearing counsel for the parties, going through the plaint, application under Order VII Rule 11(d) CPC and the judgments of the trial court and the High Court, we are of the opinion that the present suit could not be dismissed as barred by limitation without proper pleadings, framing of an issue of limitation and taking of evidence. Question of limitation is a mixed question of law and fact. Ex facie in the present case on the reading of the plaint it cannot be held that the suit is barred by time. ..."
Page 22 of 30 Downloaded on : Sat Sep 07 23:17:10 IST 2019 C/FA/124/2014 CAV JUDGMENT14. In the case of Popat and Kotecha Property Vs. State Bank of India Staff Association, reported in (2005) 7 SCC 510, the Supreme Court opined inter alia that "Rule 11 of Order VII lays down an independent remedy made available to the defendant to challenge the maintainability of the suit itself, irrespective of his right to contest the same on merits. The law ostensibly does not contemplate at any stage when the objections can be raised, and also does not say in express terms about the filing of a written statement. Instead, the word 'shall' is used clearly implying thereby that it casts a duty on the court to perform its obligations in rejecting the plaint when the same is hit by any of the infirmities provided in the four clauses of Rule 11, even without intervention of the defendant. In any event, rejection of the plaint under Rule 11 does not preclude the plaintiffs from presenting a fresh plaint in terms of Rule 13."
15. In light of the aforesaid legal position, if the averments made in the plaint are appreciated, then it appears that though the saledeed in question was registered in the year 1985 and the suit was filed in the year 2011. Yet it would be a matter of evidence as to at what point of time, the plaintiffs came to know about the execution of the first sale deed in the year 1985. From the statements made in the plaint, it cannot be said that the suit was barred by law of limitation.
16. In the aforesaid context, I may refer to a very recent pronouncement of the Supreme Court in the case of Chhotanben and Another Vs. Kiritbhai Jalkrushnabhai Thakkar and Others reported in AIR 2018 SC 2447, wherein, the Supreme Court has observed as under:
12. What is relevant for answering the matter in issue in the context of the application under Order VII Rule 11(d), is to examine the averments in the plaint. The plaint is required to be read as a whole. The defence available to the defendants or the plea taken by them in the written statement or any application filed by them, cannot be the basis to decide the application under Order VII Rule 11(d). Only Page 23 of 30 Downloaded on : Sat Sep 07 23:17:10 IST 2019 C/FA/124/2014 CAV JUDGMENT the averments in the plaint are germane. It is common ground that the registered sale deed is dated 18th October, 1996. The limitation to challenge the registered sale deed ordinarily would start running from the date on which the sale deed was registered. However, the specific case of the appellants (plaintiffs) is that until 2013 they had no knowledge whatsoever regarding execution of such sale deed by their brothers original defendant Nos.1 & 2, in favour of Jaikrishnabhai Prabhudas Thakkar or defendant Nos.3 to 6. They acquired that knowledge on 26.12.2012 and immediately took steps to obtain a certified copy of the registered sale deed and on receipt thereof they realised the fraud played on them by their brothers concerning the ancestral property and two days prior to the filing of the suit, had approached their brothers (original defendant Nos.1 &
2) calling upon them to stop interfering with their possession and to partition the property and provide exclusive possession of half (1/2) portion of the land so designated towards their share. However, when they realized that the original defendant Nos.1 & 2 would not pay any heed to their request, they had no other option but to approach the court of law and filed the subject suit within two days therefrom. According to the appellants, the suit has been filed within time after acquiring the knowledge about the execution of the registered sale deed. In this context, the Trial Court opined that it was a triable issue and declined to accept the application filed by respondent No.1 (defendant No.5) for rejection of the plaint under Order VII Rule 11(d). That view commends to us.
13. The High Court on the other hand, has considered the matter on the basis of conjectures and surmises and not even bothered to analyse the averments in the plaint, although it has passed a speaking order running into 19 paragraphs. It has attempted to answer the issue in one paragraph which has been reproduced hitherto (in paragraph 7). The approach of the Trial Court, on the other hand, was consistent with the settled legal position expounded in Saleem Bhai and Others Vs. State of Maharashtra and Others (2003) 1 SCC 557 : (AIR 2003 SC 759), Mayar (H.K.) Ltd. and Others Vs. Owners & Parties, Vessel M.V. Fortune Express and Others; (2006) 3 SCC 100: (AIR 2006 SC 1828) and also T. Arivandandam Vs. T.V. Satyapal and Another; (1977) 4 SCC 467 :
(AIR 1977 SC 2421).
14. These decisions have been noted in the case of Church of Christ Charitable Trust and Educational Charitable Society Vs. Ponniamman Educational Trust; (2012) 8 SCC 706:(AIR 2012 SC 3912) where this Court, in paragraph 11, observed thus:
"11. This position was explained by this Court in Saleem Bhai v. State of Maharashtra, in which, while considering Order 7 Rule Page 24 of 30 Downloaded on : Sat Sep 07 23:17:10 IST 2019 C/FA/124/2014 CAV JUDGMENT 11 of the Code, it was held as under: (SCC p.560, para 9): (at p.760 of AIR).
"9. A perusal of Order 7 Rule 11 CPC makes it clear that the relevant facts which need to be looked into for deciding an application thereunder are the averments in the plaint. The trial court can exercise the power under Order 7 Rule 11 CPC at any stage of the suit--before registering the plaint or after issuing summons to the defendant at any time before the conclusion of the trial. For the purposes of deciding an application under clauses (a) and (d) of Rule 11 of Order 7 CPC, the averments in the plaint are germane; the pleas taken by the defendant in the written statement would be wholly irrelevant at that stage, therefore, a direction to file the written statement without deciding the application under Order 7 Rule 11 CPC cannot but be procedural irregularity touching the exercise of jurisdiction by the trial court."
It is clear that in order to consider Order 7 Rule 11, the court has to look into the averments in the plaint and the same can be exercised by the trial court at any stage of the suit. It is also clear that the averments in the written statement are immaterial and it is the duty of the Court to scrutinise the averments/pleas in the plaint. In other words, what needs to be looked into in deciding such an application are the averments in the plaint. At that stage, the pleas taken by the defendant in the written statement are wholly irrelevant and the matter is to be decided only on the plaint averments. These principles have been reiterated in Raptakos Brett & Co. Ltd. v. Ganesh Property and Mayar (H.K.) Ltd. v. Vessel M.V. Fortune Express : (AIR 2006 SC 1826)."
15. The High Court has adverted to the case of Church of Christ Charitable Trust and Educational Charitable Society (supra), which had occasion to consider the correctness of the view taken by the High Court in ordering rejection of the plaint in part, against one defendant, on the ground that it did not disclose any cause of action qua that defendant. The High Court has also noted the decision relied upon by the contesting respondents in the case of Mayur (H.K.) Ltd. and Ors. (supra), which has restated the settled legal position about the scope of power of the Court to reject the plaint under Order VII Rule 11(d) of CPC.
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 defendant Nos.1 & 2 to Page 25 of 30 Downloaded on : Sat Sep 07 23:17:10 IST 2019 C/FA/124/2014 CAV JUDGMENT 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. The whole approach of the Civil Court while considering the application Exh.44 could be termed as incorrect. The first thing that the Civil Judge should have taken notice of is that all the grounds raised in the application Exh.44 are nothing, but the defence of the defendants. The defence of the defendants howsoever strong, cannot be the basis for rejecting the plaint. On facts, the period of 28 years may appear to be quite long and inordinate, but that by itself would not be sufficient to reject the plaint at the threshold.
18. Mr. Majmudar and Mr. Dave, the learned counsel appearing on behalf of the defendants submitted that the plaintiffs could be said to have deemed knowledge of the registration of the saledeed in view of Section3 of the Transfer of Property Act. Both the learned counsel have placed strong reliance on the decision of the Supreme Court in the case of Dilboo (Smt.) (Dead) by L.Rs. Vs. Dhanraji (Smt.) (Dead) : 2000 (7) SCC 702.
19. Section 3 of the Transfer of Property Act is an interpretation clause explaining different terms used in the said Act. The expression "a person is said to have notice" is explained as under:
"A person is said to have notice" of a fact when he actually knows that fact, or when, but for wilful abstention from an inquiry or search which he ought to have made, or gross negligence, he would have known it.
Explanation I Where any transaction relating to immoveable property is required by law to be and has been effected by a Page 26 of 30 Downloaded on : Sat Sep 07 23:17:10 IST 2019 C/FA/124/2014 CAV JUDGMENT registered instrument, any person acquiring such property or any part of, or share or interest in, such property shall be deemed to have notice of such instrument as from the date of registration or, where the property is not all situated in one subdistrict, or where the registered instrument has been registered under subsection (2) of section 30 of the Indian Registration Act, 1908, from the earliest date on which any memorandum of such registered instrument has been filed by any SubRegistrar within whose subdistrict any part of the property which is being acquired, or of the property wherein a share or interest is being acquired, is situated :
Provided that (1) the instrument has been registered and its registration completed in the manner prescribed by the Indian Registration Act, 1908, and the rules made thereunder.
(2) the instrument [or memorandum] has been duly entered or filed, as the case may be, in books kept under section 51 of that Act, and (3) the particulars regarding the transaction to which the instrument relates have been correctly entered in the indexes kept under section 55 of that Act.
Explanation II Any person acquiring any immoveable property or any share or interest in any such property shall be deemed to have notice of the title, if any, of any person who is for the time being in actual possession thereof. Explanation III A person shall be deemed to have had notice of any fact if his agent acquires notice thereof whilst acting on his behalf in the course of business to which that fact is material :
Provided that, if the agent fraudulently conceals the fact, the principal shall not be charged with notice thereof as against any person who was a party to or otherwise cognizant of the fraud."
20. In the case of Dilboo (SMT) (Dead) by Lrs. and others (supra), the facts were that the plaintiffs had filed the suit for redemption of a mortgage created by persons whom they claimed to be their predecessors. In the meantime, the suit property was sold once again.
Page 27 of 30 Downloaded on : Sat Sep 07 23:17:10 IST 2019 C/FA/124/2014 CAV JUDGMENTWithout challenging such sale deed, the suit for redemption of mortgage was filed. It was in this background the Supreme Court held that suit was barred by limitation. The following observations made in the process need to be noted: "Thus a Suit for redemption of mortgage could be filed within 60 years. But if the mortgagee had created an interest in excess of the right enjoyed by him then to recover possession against the third party the Suit had to be filed within 12 years of the transfer becoming known to the plaintiff. The rational in cutting down the period of 60 years to 12 years is clear. The 60 years period is granted as a mortgagee always remains a mortgagee and thus the rights remain the same. However when an interest in excess of the interest of the mortgagee is created then the third party is not claiming under the mortgagee. The position of such a person could not be worse than that of a rank trespasser who was in open and hostile possession. As the title of the rank trespasser would get perfected by adverse possession on expiry of 12 years so also the title of such transferee would get perfected after 12 years. The period of 12 years has to run from the date of knowledge by the plaintiff of such transfer. It is always for the party who files the Suit to show that the Suit is within time. Thus in cases where the suit is filed beyond the period of 12 years, the plaintiff would have to aver and then prove that the Suit is within 12 years of his/her knowledge. In the absence of any averment or proof, to show that the suit is within time, it is the plaintiff who would fall. Whenever a document is registered the date of registration becomes the date of deemed knowledge. 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 period of limitation by merely claiming that he had no knowledge."
21. It is true that in the said case, the Supreme Court did apply the principle of deemed knowledge on a plaintiff, who claimed to be having preexisting right when the suit land was subsequently sold. However, such observations should not be read in isolation and cannot be seen as the Court laying down a ratio that in case of every registered instrument of transfer of immovable property, the world at large would be deemed to have notice of such transaction and the period of limitation to question the legality thereof would commence from the date of Page 28 of 30 Downloaded on : Sat Sep 07 23:17:10 IST 2019 C/FA/124/2014 CAV JUDGMENT registration of the instrument. In fact the Supreme Court adopted the analogy and applied the principles flowing from section 3 of the Transfer of Property Act in the facts of the case where the plaintiffs could and ought to have discovered with due diligence regarding the subsequent sale transaction. It was in this context the Supreme Court held that in the absence of any averment or proof to show that the suit is within time, the plaintiff would fail. It was further observed that when a 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, even in a case of a registered document, to any situations which are not covered under section 3 of the Transfer of Property Act, it is always open for the plaintiff to point out as to the manner and source of knowledge of the transaction and to establish that such fact could not have been discovered by due diligence and that therefore, the plaintiff cannot be attributed deemed knowledge of the offending transaction.
22. Thus, in the overall view of the matter, I am convinced that the plaint could not have rejected on the ground that the suit is barred by the law of limitation. I may remind the learned Civil Judge of the decision of the Supreme Court in the case of Surjit Kaur Gill v. Adarsh Kaur Gill reported in 2014 AIR SC 1476, in which, while dealing with the issue of rejection of plaint under Order VII Rule 11 of the Code of Civil Procedure, the Supreme Court allowed the trial to proceed observing that the issue of limitation is always a mixed question of fact and law, and it can therefore, not be held that no case was made out for proceeding further with the trial.
Page 29 of 30 Downloaded on : Sat Sep 07 23:17:10 IST 2019 C/FA/124/2014 CAV JUDGMENT23. In the result, this First Appeal succeeds and is hereby allowed. The impugned judgment, order and decree passed by the Principal Senior Civil Judge, Surendranagar dated 30th November, 2013 below Exh.44 in the Special Civil Suit No.30 of 2011 is hereby quashed and set aside.
The Special Civil Suit No.30 of 2011 is revived and is restored to its original file in the Court of the Principal Senior Civil Judge, Surendranagar. The Principal Senior Civil Judge, Surendranagar, shall now proceed with the suit expeditiously in accordance with law.
(J. B. PARDIWALA, J) FURTHER ORDER After the judgment is pronounced, Mr. Majmudar, the learned counsel appearing for the defendants nos.1.1 to 1.5 makes a request to stay the operation of the order for a period of four weeks. For the reasons stated in the judgment, the request is declined.
(J. B. PARDIWALA, J) aruna Page 30 of 30 Downloaded on : Sat Sep 07 23:17:10 IST 2019