C/FA/236/2020 CAV JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/FIRST APPEAL NO. 236 of 2020
With
CIVIL APPLICATION (FOR STAY) NO. 1 of 2019
In R/FIRST APPEAL NO. 236 of 2020
FOR APPROVAL AND SIGNATURE:
HONOURABLE MS.JUSTICE HARSHA DEVANI Sd/-
and
HONOURABLE MS. JUSTICE SANGEETA K. VISHEN Sd/-
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 ?
JILUBHAI JAMUBHAI
Versus
BAHADURBHAI JAMABHAI
Appearance:
MR.SANAT B PANDYA(6976) for the Appellant(s) No. 1,2
for the Defendant(s) No.
1,2,3,3.1,3.2,3.3,3.4,3.5,3.6,3.7,3.8,4,4.1,4.2,4.3,4.4,4.5,5
MR. EKRAMA H QURESHI(7000) for the Defendant(s) No. 6
CORAM: HONOURABLE MS.JUSTICE HARSHA DEVANI
and
HONOURABLE MS. JUSTICE SANGEETA K. VISHEN
Date : 26/03/2020
CAV JUDGMENT
(PER : HONOURABLE MS. JUSTICE SANGEETA K. VISHEN)
1. The present appeal has been filed against the order dated
12th June, 2019 passed by the learned Senior Civil Judge,
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Sanand below Exhibit 58 whereby, the application Exhibit 58
filed by the respondent No.6 under the provisions of Order VII
Rule 11(d) of the Code of Civil Procedure, 1908 (hereinafter
referred to as “the Code”) has been allowed. By virtue of the
order dated 12th June, 2019 the Regular Civil Suit filed by the
appellant, came to be rejected on the ground that the same is
barred by limitation.
2. The appellants herein i.e. the original plaintiffs
(hereinafter referred to as “the appellants”) have instituted the
Special Civil Suit No.244 of 2017 (old Special Civil Suit No.699
of 2011) against the respondents i.e. the original defendants
(hereinafter referred to as “the respondents”) before the court
of learned Senior Civil Judge, inter alia, for declaration,
declaring the registered sale deed dated 2nd August 1982 as
well as the subsequent registered sale deeds executed in
favour of respondents No. 4 and 5 and respondent No.6 in the
year 1993 and 2008 respectively, as null and void. The
appellants have also prayed for permanent injunction against
the respondents.
3. The case of the appellants is that the appellants are the
original owners of block No.1036 admeasuring 20538 square
meters of land including the land of kharaba (hereinafter
referred to as “the land in question”). According to the
appellants, the respondents No. 1 and 2 being mother and
elder brother respectively of the appellants had executed the
registered sale deed dated 2nd August, 1982 with respect to the
land in question in favour of the respondent No.3, when the
appellants were minor. The respondents No. 1 and 2 being the
guardians of the appellants, have executed the said sale deed
with respect to the land in question without their permission,
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where, the appellants were having undivided share and which
could not have been sold by the respondents No. 1 and 2 in
favour of the respondent No.3.
3.1 It is further the case of the appellants that the respondent
No.3 thereafter, executed a registered sale deed registered at
serial No.1783 with the office of the Sub-Registrar, in favour of
the respondents No.4 and 5 with respect to the land in
question followed by further execution of the sale deed by the
respondents No.4 and 5 in favour of the respondent No.6 on
27th March, 2008. The said registered sale deed is registered at
serial No.4735 with the office of the Sub-Registrar and on the
basis whereof, necessary entries have been mutated in the
revenue record recording the transaction in favour of the
respondent No.6.
3.2 It is the case of the appellants that when the documents
were produced before the Talati-cum-Mantri for the purpose of
posting the revenue entry that the appellants came to know
about the said entries through Talati-cum-Mantri and
accordingly the appellants procured the record from the office
of the Talati-cum-Mantri. It is thereafter that the appellants
tried to find out from the respondents No.1 and 2 being the
mother and elder brother respectively of the appellants about
the land in question. The respondents No.1 and 2 denied the
said aspect. It is thereafter that the appellants got the copies
of the entries and panipatrak from the office of the Talati-cum-
Mantri and on the basis whereof the appellants came to know
that the entries have been posted pursuant to the execution of
the registered sale deed. Resultantly, the appellants procured
all the relatable entries and documents from the office of the
Sub Registrar, Sanand which were provided to the appellants
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only on 1st July, 2011 and 2nd July, 2011 and thereafter when
confronted the respondents No.1 and 2 did not give any
satisfactory reply to the appellants.
3.3 Immediately upon getting the information about the
execution of the sale deed dated 2nd August, 1982 in favour of
the respondent No.3; subsequent execution of the sale deed in
respect of respondents No.4 and 5 and; execution of the sale
deed in favour of the respondent No.6, that the appellants
preferred the Special Civil Suit No.244 of 2017 inter alia
praying for declaration of cancellation of all the three sale
deeds executed in the years 1982, 1993 and 2008 respectively
as well as for permanent injunction.
4. Upon receipt of the notice of the suit, the respondent
No.6 preferred an application Exhibit 58 under the provisions of
Order VII Rule 11(d) of the Code praying for rejection of the
suit since the suit filed by the appellants was belated and
barred by the law of limitation inasmuch as, the suit has been
filed almost after a period of 30 years. The aforesaid
application Exhibit 58 filed by the respondent No.6 was
contested by the appellants by filing a reply. The Senior Civil
Judge, Sanand after hearing the parties, passed an order dated
12th June, 2019 below Exhibit 58 and allowed the aforesaid
application Exhibit 58 filed by the respondent No.6 and
thereby, the plaint came to be rejected.
5. Being aggrieved, the appellants have filed the present
appeal challenging the said order dated 12th June, 2019 passed
below Exhibit 58 by the Senior Civil Judge, Sanand in Special
Civil Suit No.244 of 2017.
6. Mr. Sanat Pandya, learned advocate for the appellants
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submitted that the execution of the sale deed dated 2 nd
August, 1982 registered with the office of the Sub-Registrar, by
the respondents No.1 and 2 was ab initio void considering the
fact that the respondents No. 1 and 2 did not act in the interest
of the appellants. It is further submitted that at the time of
execution of the sale deed dated 2nd August, 1982, the
appellants were minor and the respondents No.1 and 2
projecting themselves as the guardians of the appellants and
without giving the shares of the appellants, illegally executed
the sale deed. It is also submitted that the execution of the
sale deed by the respondents No.1 and 2 in favour of the
respondent No.3 was without any prior permission of the
concerned court so also without following the prescribed
procedure under the provisions of the Guardians and Wards
Act, 1890.
6.1 It is further submitted that subsequently the respondent
No.3 executed a registered sale deed No.1783 registered with
the office of the Sub-Registrar in favour of the respondents No.
4 and 5 and the respondents No.4 and 5 executed another
sale deed which was registered with the office of the Sub-
Registrar at serial No.4735 in favour of the respondent No.6. It
is submitted that the appellants were not aware about the
execution of the aforesaid sale deeds and it is only when the
registered sale deed No.4735 was produced before the office
of the Talati-cum-Mantri for the purpose of mutation in the
revenue records that the office of the Talati-cum-Mantri
informed the said fact to the appellants. The appellants upon
coming to know about such fraud, inquired with the
respondents No.1 and 2; however, the respondents No.1 and 2
did not give satisfactory reply, hence the appellants procured
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the copies of the revenue record and upon procuring the
revenue entries, it came to the knowledge of the appellants
that the respondents No. 1 and 2 by colluding with each other
and without following any legal provisions had executed the
sale deed in favour of the respondent No.3.
6.2 It is submitted that when the sale deed dated 2 nd August,
1982 came to be executed by the respondents No.1 and 2 in
favour of the respondent No.3, the appellants were minor and
that the learned trial court, ought to have appreciated that the
respondents No.1 and 2 while defeating the rights of the
appellants executed the sale deed in favour of the respondent
No.3 and that too without following any procedure laid down
under the provisions of the Guardians and Wards Act, 1890. It
is further submitted that the issue of limitation is an issue of
mixed question of facts and law and is a triable issue and that
the plaint ought not to have been rejected at the threshold. It
is further submitted that the Apex Court has time and again
held that rejection of plaint under Order VII Rule 11(d) of the
Code at the threshold entails serious consequences and such
exercise of power should be in the exceptional circumstances
and that too when the court is absolutely sure about the
plaintiffs not having an arguable case at all.
6.3 It is further submitted that the question of limitation
being a mixed question of law and facts the learned trial court
ought to have appreciated the aspect that the appellants came
to know about the execution of the sale deed only when the
appellants inquired from the office of the Talati-cum-Mantri in
the year 2011. It is submitted that the land in question was in
possession of the appellants till the year 2011 and hence, the
second part of Article 54 of the Limitation Act, 1890
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(hereinafter referred to as “the Limitation Act”) would apply
and not the first part and thus, the suit having been filed in the
year 2011, the plaint could not have been rejected on the
ground that the suit is barred by limitation.
6.4 It is further submitted that the suit was not filed only
challenging the sale deed but was also containing prayer for
permanent injunction against the possession of the appellants
of the land in question and thus, the prayer for permanent
injunction could not have been said to be barred by the law of
limitation. Thus, it is urged that the appeal deserves
consideration.
7. Per contra, Mr. Ekrama Qureshi, learned advocate for the
respondent No.6 submitted that the suit filed by the appellants
was hopelessly time barred inasmuch as, the first sale deed
was executed on 2nd August, 1982. It is further submitted that
the sale deeds, that is, three in number were executed in
succession and were duly registered with the office of the Sub-
Registrar in the years 1982, 1993 and 2008 respectively.
Hence, filing of the suit by the appellants in the year 2011 was
clearly barred by law of limitation and that the trial court was
justified in allowing the application filed by the respondent
No.6 invoking the provisions of Order VII Rule 11(d) of the
Code.
7.1 It is further submitted that evidently, the suit has been
filed after a period of almost 30 years. Further, the
respondents No.1 and 2 had executed a registered sale deed
on 2nd August, 1982 and in the sale deed the age of the
appellants is mentioned as 16 years. Considering the age of 16
years in 1982, the appellants would have attained majority
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around the year 1986-1987 and considering 3 years from the
year 1986-1987 the suit ought to have been filed latest in the
year 1990-1991; whereas, the present suit had been filed in
the year 2011 and clearly the suit is barred by the law of
limitation.
7.2 It is further submitted that the issue in the present case is
directly covered by the judgment of this court in the case of
Becharbhai Zaverbhai Patel Another v. Jashbhai Shivabhai
Patel Others reported in 2013 (1) GLR 398 wherein, this
court has held that the suit cannot be brought within the
limitation by clever drafting and that the execution of the
registered sale deed is a deemed notice to the aggrieved
party. Thus, the facts of the present case clearly reflects that
the suit filed by the appellants is barred by the law of
limitation. It is thus submitted that the present appeal is
required to be dismissed.
8. Having heard the learned advocates for the respective
parties the following point arises for determination by this
court:
(i) whether the trial court was justified in rejecting the
plaint as being barred by limitation as provided under
Article 60 of the Limitation Act.
9. For deciding the controversy in issue, the provisions of
the Limitation Act as well as the Code are worth referring to.
10. Article 60 of Part IV titled “Suits relating to decrees and
instruments” of the Limitation Act relevant extracts whereof for
the present purpose read thus:
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Article Description of Suit Period of Time from which
Limitation period begins to run
60 To set aside a transfer of
property made by the
guardian of a ward –
(a) by the ward who has Three When the wards
attained majority. years attains majority
Article 60 of the Limitation Act provides for the limitation with
respect to the rights of the minors in the properties so also
execution of the transaction and provides for limitation of three
years. Article 60 of the Limitation Act provides for limitation of
three years, for setting aside a transfer of the property made
by the guardian of a ward, by the ward who has attained
majority. In other words, the said limitation of three years will
apply from the date of minor attaining the majority.
11. The Order VII Rule 11 of the Code reads thus:
“11. Rejection of plaint. – The plaint shall be rejected
in the following cases: –
(a) Where it does not disclose a cause of action;
(b) where the relief claimed is undervalued, and
the plaintiff, on being required by the Court to
correct the valuation within a time to be fixed by the
court, fails to do so;
(c) Where the relief claimed is properly valued but
the plaint is written upon paper insufficiently
stamped, and the plaintiff, on being required by the
Court to supply the requisite stamp-paper within a
time to be fixed by the court fails to do so;
(d) Where the suit appears from the statement in
the plaint to be barred by any law;
(e) where it not filed in duplicate;
(f) where the plaintiff fails to comply with the
provisions of rule 9:
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Provided that the time fixed by the court for the
correction of the valuation or supplying of the
requisite stamp-paper shall not be extended unless
the court, for reasons to be recorded, is satisfied
that the plaintiff was prevented by any cause of an
exceptional nature for correcting the valuation or
supplying the requisite stamp-paper, as the case
maybe, within the time fixed by the Court and that
refusal to extend such time would cause grave
injustice to the plaintiff.”
12. In this behalf it would be profitable to refer to few
judgments of this court as well as the Apex Court. In the case
of Becharbhai Zaverbhai Patel Another v. Jashbhai Shivabhai
Patel Others (supra), this court while relying upon the
judgment of the Apex Court in the case of Dilboo (Smt)(Dead)
by Lrs Anr vs. Dhanraji (Smt)(Dead) and Others reported in
(2000) 7 SCC 702 held that immediately after the execution of
the registered sale deed followed by mutation of entry in
favour of the party on the basis of the registered sale deed it is
deemed to have the knowledge of the said transaction and
that by making vague averments in the plaint that earlier he
had no knowledge and came to know about the transaction
subsequently; by such clever drafting it would be
impermissible for the plaintiff to bring the suit within the period
of limitation which otherwise is barred by law of limitation.
Relevant paragraphs 6.2 and 6.3 read thus:
“6.2. As stated above, registered sale deeds was
executed by the original defendant no.1 in favour
of original defendants no. 3 and 4 (petitioners
herein) on dated 25.8.1975. 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 defendants no. 3 and 4 and thePage 10 of 16
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C/FA/236/2020 CAV JUDGMENTland 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
10.6.1981.As held by the Hon’ble 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
25.8.1975 was registered in the year 1975 itself
and even the mutation entry was made in favour of
defendants no.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
25.8.1975 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.
6.3. Now, so far as the decision of the Hon’ble
Supreme Court in the case of Balasaria
Construction (P) Ltd., [2006 (5) SCC 658] relied
upon by the learned advocate for the original
plaintiffs, as stated above it cannot be disputed
that while considering application under Order 7
Rule 11(d) of Code of Civil Procedure at that stage
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the Court is required to consider the averments in
the plaint and supporting documents produced
along with plaint only. However, considering the
facts and circumstances of the case and as stated
above even considering the averments and the
pleadings in the plaint as they are, the suit is
clearly barred by law of limitation. Under the
circumstances, the impugned order passed by the
learned trial Court deserves to be quashed and set
aside.”
13. This court in the case of Kanjibhai Bhagwanjibhai Patel v.
Nanduben Shamjibhai Sorathiya through POA Dharmeshbhai
Trivedi reported in 2013 (1) GLR 51 after considering various
decisions of the Apex Court with respect to the provisions of
Order VII Rule 11 of the Code has observed and held that on
considering the averments in the plaint if it is found that the
suit is time barred, the plaint can be rejected in exercise of the
powers of Order VII Rule 11(d) of the Code.
14. The Apex Court in the case of Dilboo (Smt)(Dead) by Lrs
Anr vs. Dhanraji (Smt)(Dead) and Others (supra) has held
that 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. The
Apex Court while considering Articles 134 and 148 of the
Limitation Act providing for period of limitations held that so far
as Article 134 is concerned, the time beings to run when the
transfer becomes known to the plaintiff whereas Article 148 is
concerned, the limitation starts running when the right to
redeem or to recover possession accrues. The Apex Court while
considering Article 134 of the Limitation Act observed and held
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that the period of 12 years has to run from the date of
knowledge by the plaintiff of such transfer and it is always for
the party who files the suit to show that the suit is within time.
It has been further observed that 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 and in the absence of any averment or proof to
show that the suit is within time, it is the plaintiff who would
fail.
15. Pertinently, the first sale deed dated 2nd August, 1982
was registered with the office of the Sub-Registrar bearing
registration No.1210 in the favour of the respondent No.3.
Further, the second registered sale deed dated 25th October,
1993 was executed by the respondent No.3 in favour of the
respondents No.4 and 5 in the year 1993 by when, the
appellants had already attained the majority; however, the said
registered sale deed was not challenged by the appellants.
Then followed the transaction in the year 2008 executed by
the respondents No. 4 and 5 in favour of the respondent No.6
on 27th March, 2008 which also remained unchallenged within
the period of limitation of three years. It is only in the year
2011 that the appellants after so called collection of
information from the Talati-cum-Mantri as well as from the
respondents No. 1 and 2 that it came to the knowledge that
the land in question has been sold away by the respondents
No.1 and 2 namely the mother and elder brother respectively
of the appellants, in favour of the respondent No.3 in the year
1982.
16. As can be seen from the provisions of Article 60 of the
Limitation Act in Part IV titled “Suits relating to decrees and
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instruments”, the period of limitation provided is 3 years for
setting aside of transfer of property made by the guardian of a
ward from the date the ward attains the majority. As discussed
hereinabove, clearly, the first registered sale deed was
executed in the year 1982 where the appellant No.1 was minor
aged about 16 years. If the age of the appellant No.1 is
considered to be 16 years in the year 1982, the appellant No.1
would have attained majority at the most in the year 1986 and
if considered the 3 years from the year 1986, the appellant
No.1 ought to have filed the suit after 3 years immediately on
attaining the majority that would be somewhere in the year
1989-1990. Examining the issue of limitation from the another
angle, that is, giving some leeway to the appellants, the
appellants would have attained the majority by the year 2000
the suit should have been filed latest by 2003-2004; however
no challenge was made. Further, even if taken the sale deed of
the year 2008, the suit by the appellants should have been
filed in the year 2011 that is on or before March 2011;
however, the suit has been filed only on 26th July, 2011 that
again will be beyond the period of limitation.
17. It has been averred in the plaint that the appellants had
undivided share in the land in question; however, the
respondents No.1 and 2 taking advantage of the fact that the
appellants were minor and without obtaining any consent and
without protecting the rights of the appellants, and without
following any procedure under the Guardians and Wards Act
and with a view to destroy the rights of the appellants,
executed the sale deed in favour of the respondent No.3.
Except mentioning that when the appellants obtained the
revenue records on 1st July, 2011 and 2nd July, 2011 that it
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came to their knowledge about the execution of the sale deed
in the year 1982; the plaint is conspicuously silent about the
aspects namely when the appellants attained majority; why the
appellants had no knowledge and were not aware about the
execution of the sale deeds; what the appellants did for all
these years, that is, from 1982 till the year 2011. Considering
the substantial time lag between the execution of all the sale
deeds, it is difficult to believe that the appellants were not
aware about the execution of all the three sale deeds, that is,
the first sale deed in the year 1982, followed by the second in
the year 1993 and lastly in the year 2008.
18. In all the respects, the suit filed by the appellants on 26th
July, 2011, is hit by the provisions of Article 60 of the Limitation
Act and as discussed hereinabove, except mentioning that it is
only when the appellants obtained the revenue record
somewhere in the month of July 2011 that it came to their
knowledge of all the three sale deeds executed in favour of the
respondents No. 3 to 6, no other averments are made
substantiating the said aspect that the suit is within limitation.
In the absence of any averments made in the plaint to the
effect that the suit is within time or pointing out any other
circumstances warranting recording of evidence; the
contention that the issue of limitation being a mixed question
of law and facts the plaint ought not to have been rejected at
the threshold; is devoid of any merit and does not deserve
acceptance.
19. The trial court has observed that considering the first
registered sale deed executed in the year 1982 and taking the
year 1982 as birth year, the appellants would have attained
majority by the year 2000. Considering the same, the suit filed
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in the year 2011 is clearly barred by limitation. The trial court
has further observed and held that the suit has been filed after
30 years of the first registered sale deed in the year 1982 and
after 18 years from the execution of the second registered sale
deed in the year 1993. It has been also held that the suit has
been filed on 26th July, 2011 that is beyond the period of 3
years from the execution of the third registered sale deed on
27th March, 2008. As is well settled and as observed and held
by the Apex Court in the case of Dilboo (Smt)(Dead) by Lrs
Anr vs. Dhanraji (Smt)(Dead) and Others (supra) that the
registered document is a deemed notice. Thus on all the three
counts the suit filed by the appellants on 26th July, 2011 is
clearly barred by the law of limitation and thus the trial court
rightly allowed the application Exhibit 58 filed by the
respondent No.6 under the provisions of Order VII Rule 11(d) of
the Code.
20. In view of the above, we see no reason to interfere with
the order dated 12th June, 2019 passed by the trial court
rejecting the plaint under Order VII Rule 11(d) of the Code.
Accordingly, the present appeal fails and is summarily
dismissed.
21. In view of the dismissal of the First Appeal, the civil
application also stands dismissed.
(HARSHA DEVANI, J)
(SANGEETA K. VISHEN,J)
RAVI P. PATEL
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