Gujarat High Court
Legal Heirs And Representatives Of Late ... vs Jitendrabhai Talshibhai Rai on 29 August, 2018
Author: J.B.Pardiwala
Bench: J.B.Pardiwala
C/SA/171/2018 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SECOND APPEAL NO. 171 of 2018
With
CIVIL APPLICATION NO. 2 of 2018
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LEGAL HEIRS AND REPRESENTATIVES OF LATE CHANDRAKANTBHAI
MAGANBHAI PATEL
Versus
JITENDRABHAI TALSHIBHAI RAI
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Appearance:
HL PATEL ADVOCATES(2034) for the PETITIONER(s) No. 1
MR MANTHAN K BHATT(6549) for the RESPONDENT(s) No. 1,2
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CORAM: HONOURABLE MR.JUSTICE J.B.PARDIWALA
Date : 29/08/2018
ORAL ORDER
1 This Second Appeal under Section 100 of the Code of Civil Procedure, 1908 is at the instance of the original plaintiffs and is directed against the judgment and order dated 31st July 2017 passed by the 12th Additional District Judge, Vadodara in Regular Civil Appeal No.82 of 2016 arising from a judgment and decree dated 20th October 2016 passed by the 13th Additional Senior Civil Judge, Vadodara below Exhibit : 19 in Regular Civil Suit No.2075 of 2015.
2 It appears from the materials on record that the appellants - original plaintiffs instituted the Regular Civil Suit No.2075 of 2015 against the respondents herein - original defendants for declaration that they are the owners of the suit land bearing block No.49 of revenue survey No.40 situated at village : Kalali, District: Vadodara and are in exclusive possession of the same. The plaintiffs further prayed to declare a conditional mortgage deed dated 18th July 1963 said to have been Page 1 of 5 C/SA/171/2018 ORDER executed by his mother in favour of the defendant No.1 as void. They prayed for redemption of mortgage by making payment of Rs.3,500/ to the defendants.
3 It appears that the defendants preferred an application Exhibit :
19 under Order 7 Rule 11 (D) of the C.P.C. and prayed for rejection of the plaint on the ground that the suit was time barred. The Trial Court adjudicated Exhibit : 19 and allowed the same. The plaint came to be rejected on the ground that the suit was hopelessly time barred.
4 Being dissatisfied with the judgment and decree passed by the Trial Court, the appellants herein preferred the Regular Civil Appeal No.82 of 2016 in the District Court at Vadodara. The appeal before the District Court also failed and was ordered to be dismissed.
5 Thus, upon concurrent findings of two Courts below, the appellants are here before this Court with this Second Appeal under Section 100 of the C.P.C.
6 The following questions have been formulated as the substantial questions of law in the memorandum of the Second Appeal:
"A. Whether the Ld. Courts have erred in holding the period of limitation from the date of execution of the disputed document and not from the date of knowledge of the said document to the original plaintiff.
B. Whether the Ld. Courts have erred in not appreciating the fact that the original plaintiff was a minor during the time when the disputed document was executed by his mother to his detriment and the same is not allowed without the prior permission of the concerned District Court.
C. Whether the Ld. Courts have erred in travelling beyond the contents of plaint while deciding an application under the provisions of Order VII Rule XI of Code of Civil Procedure, 1908."
7 Having heard the learned counsel appearing for the parties and Page 2 of 5 C/SA/171/2018 ORDER having considered the materials on record, I am of the view that none of the questions formulated in the memorandum of the Second Appeal could be termed as substantial questions of law. The findings recorded by the two Courts below are very clear. In my view, the suit filed by the plaintiffs was time barred. The conditional mortgage deed of the year 1963 came to be challenged for the first time in the year 2013.
8 In the aforesaid context, let me look into the findings recorded by the lower Appellate Court:
"23. Now, concerning Article 61 of the Limitation Act, it is submitted that in the plaint that plaintiff have prayed for deed of redemption of mortgage therefore, considering the Article 61 which prescribed limitation of 30 years suit would be within the period of limitation.
At the outset, it is required to be noted that in the plaint there are no specific averments and/or pleadings that on which date plaintiff has attained the age of majority, plaintiff has nowhere mentioned his date of birth or he has not mentioned his actual age. There are no allegations, even no pleadings or averments in the plaint with respect to even date of the death of his mother also. Under the circumstances, without any further pleadings, merely because, there is prayer for deed of redemption of mortgage, the suit which is otherwise barred by law of limitation with respect to other prayers, the suit cannot be permitted to be brought within the limitation only by such prayer. The claver drafting and seeking relief of possession would not bring the suit within the period of limitation.
24 Now, so far as plea of the plaintiff regarding age i.e. at the time when he was minor is concern, it is relevant to mentioned that Section 6 of the Limitation Act, specifically, provides the right of a minor to initiate legal action on completion of three years after the legal disability on account of the minority would cease., the combined reading of Secs. 6 and 8 and Art. 60, the suit, in fact situation like case on hand, is required to be filed within a period of three years from the date of attaining the majority. Section 6 of the Limitation Act provides a person entitled to sue at the time from which the prescribed period is to be reckoned a minor institute the suit within the same period after the disability has ceased as would otherwise, has been allowed from the time specified therefor in the third column of the Schedule.
Section 8 is proviso to Sec. 6 or Sec. 7. A conjoint reading of Secs. 6 and 8 read with third column of the appropriate Article would be that the Page 3 of 5 C/SA/171/2018 ORDER person under disability may sue after fixation of the disability within the same period as would otherwise be allowed from time specified or in the third column of the schedule. It may be emphasised that such an extended period in no case go beyond the period of three years from the date of cessation of the disability. It, therefore, clearly emerges that the right to institute a suit of the plaintiff shall get expired at the end of three years from the date of his attaining majority.
25 In present case, the Respondent ("the Defendant) purchased and came into possession of a piece of land in 1963. In 2013, the plaintiff filed a suit against the defendant alleging that he is the son of the original owner of the property, thus the sale in favour of the Defendant was void. The trial Court held that since the suit had been filed by the plaintiff 20 years after expiration period of limitation, It was held that plaintiff has not filed any document regarding his age and there is no pleading in this regards,but after death of plaintiff his wife was join as plaintiff and her age is mentioned as 66 years and age of the heirs of plaintiff is mentioned as 45 and 52 and therefore it can be presumed that at the time of the filling of present suit plaintiff's age might be of 60 years, Therefore, the suit by the plaintiff filed in 2013 is beyond the period of three years.
26 So far as arguments of plaintiff that his deceased mother has no rights and power to sale of agriculture land bearing S.No.40 because as per say of the plaintiff he was minor in 1963 and without the permission of the district court his mother was not competent to make any transaction in respect of the property of minor,therefore sale deed is void is concern,As discussed above, plaintiff has filed present suit at the age of 60 years I.e long after attaining the age of majority he could have instituted a suit within three years therefrom, Therefore, the suit by the plaintiff filed in 2013 is beyond the period of three years. Hon'ble Gujarat High Court in case reported in 2001 GLR 16 (FB) has held that ""A Ward on his attaining the age of majority like that on cessation of the disability, fails to pursue the legal remedy or to initiate a legal battle by filing a suit, he would not be entitled to file suit, and therefore, the person in possession of the property would get his possession or title as the case may be perfected upon the extinguishment of the right to file a suit in relation to a property. It is further held by Hon'ble High Court that ""Suit to set aside such alienation must be filed within three years of minor attaining majority If suit is not instituted within the limitation, right of purchaser would become perfect".
9 In view of the categorical findings recorded by the lower Appellate Court referred to above, I see no good reason to admit the Second Appeal.
Page 4 of 5 C/SA/171/2018 ORDER10 In the result, this Second Appeal fails and is hereby dismissed. As the Second Appeal has been dismissed, the connected civil application would not survive and the same is also dismissed.
(J.B.PARDIWALA, J) CHANDRESH Page 5 of 5