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2008 DIGILAW 873 (BOM)

Xavier D Souza v. Luis D Souza

2008-06-25

N.A.BRITTO

body2008
JUDGMENT:- Heard Mr. D. Pangam, learned Counsel on behalf of the Appellants and Mr. S. D. Padiyar, learned Counsel on behalf of the Respondents. 2. Admit. By consent heard forthwith. 3. This is plaintiffs' appeal against rejection of plaint by Order dated 1-12-2007 of the learned Civil Judge, Senior Division at Panaji. 4. Briefly stated, the plaintiff No.1 and defendant No.1 are brothers. Plaintiff No.2 and Defendant No.2 are their respective spouses. The plaintiff No.1 is a businessman as can be seen from the cause title and works abroad whilst the defendant No.1 is a lawyer by profession. Plaintiff No.1 and Defendant No.1 shall be hereinafter referred to as plaintiff and defendant, respectively. 5. There is no dispute that a sale deed, was executed between the plaintiff and the , defendant on one side, and Mr. Tito Menezes and his wife on the other side, and this sale deed pertained to property surveyed under , Nos.59n and 60/0 of Village Talaulim. This sale deed was executed on 25-10-1988 and lodged for registration on the same day. 6. Claiming that the plaintiff came to know for the first time on 19-1-2005 that the said sale deed was jointly executed in favour of the plaintiff and defendant the plaintiff filed Special Civil Suit No.42/2007/B, for (a) a declaration that the plaintiffs are the exclusive owners in possession of the suit property and the defendants have no right, title or interest whatsoever in the suit property or any part or portion thereof, (b) a declaration that the name of defendant no. 1 appearing in the occupant's column of survey no.60/0 and 59/7, be deleted and (d) a decree and order of permanent injunction to restrain the defendants, their servants, etc. from interfering with the suit property. 7. The defendant filed an application dated 7-6-2007, for rejection of the plaint, under Order 7, Rule 11, C.P.C. taking several objections and, inter alia, stating that the plaintiffs were challenging the sale deed dated 25-10-1988 registered under No.815/91 on 22-8-1991 and the suit was filed on 31-3-2007, and, any challenge to such a deed either for its cancellation or ratification was required to be instituted from the date of knowledge and even for seeking a declaration relating to such an instrument the limitation period was of three years. 8. 8. It appears that at the stage of arguments certain documents were produced by the defendant but according to the learned Counsel for the defendant, the said documents were none other than the documents which were produced along with the written statement filed by them, and which were referred to in the plaint, but the dates of execution of the same were suppressed by the plaintiff. 9. The learned trial Court referred to the case of T. Arivandandam Vs. T. V. Satyapal ( AIR 1977 SC 2421 ) and observed that the plaintiff would have been required to be examined as regards the date of the said Award and the date of his receiving compensation, etc. but that exercise would not be required to be done since the notice under Section 12(2) of the Land Acquisition Act was produced by the defendant. The learned trial Judge was conscious of the fact that the Court for the rejection of the plaint under Section 7, Rule 11, C.P.C. was required to look only into the pleadings of the plaintiffs and was not required to look into the documents produced by the defendant but the learned trial Court proceeded to hold that the plaintiff had suppressed material facts in the pleadings and the documents produced by the defendant supplied the omissions and therefore the said documents produced by the defendant could be looked into and upon perusal of the same it noted that the A ward was passed on 27-1-1994 and notice was issued on 18-4-1994 under Section 12(2) of the Land Acquisition Act, 1894, and, further noted that the said Award disclosed that compensation was paid to the plaintiffs and the defendants on 50:50 basis. Therefore, the learned trial Court concluded that the plaintiffs were aware of the sale deed at least from January, 1994 and the challenge to the said sale deed executed in the year 1988 was hopelessly time barred and therefore the learned trial Court proceeded to reject the plaint in terms of Clause (d), Rule 11, Order 7, C.P.C.. 10. Mr. Pangam, learned Counsel on behalf of the plaintiffs submits that the plaint could not have been rejected on the basis of the documents produced by the defendants, even by referring to the dates which appeared on the documents, so produced. Relying upon the case of Popat and Kotecha Property Vs. 10. Mr. Pangam, learned Counsel on behalf of the plaintiffs submits that the plaint could not have been rejected on the basis of the documents produced by the defendants, even by referring to the dates which appeared on the documents, so produced. Relying upon the case of Popat and Kotecha Property Vs. State Bank of India Staff Association ( (2005)7 SCC 510 ) learned Counsel further submits that the statements in the plaint has to be looked into without any addition or subtraction and if on the basis of such statement the plaint can be said to be barred by any provisions of law then only the powers under Order 7. Rule 11, C.P.C., can be exercised and not otherwise. Mr. Pangam, learned Counsel has also placed reliance on the case of Shivrudra Shivling Pail wan and others Vs. Prakash Maharudhra Pail wan and others ( 2002(6) Bom.C.R. 546 : [2003(1) ALL MR 48]) wherein this Court observed that undoubtedly Order 7, Rule 11 (d) of C.P.C. provides that the plaint shall be rejected in case when the suit appears from the statement in the plaint to be barred by any law. The object behind such provision of law being to avoid manifestly vexatious and merit less litigation and to protect the parties being unnecessarily harassed by others. Clause (d) of Rule 11, Order 7, C.P.C. would apply to the cases when it would reveal from the contents of the plaint that the suit is barred. In other words, in order to enable the Court to arrive at the conclusion that the suit filed by the plaintiff is barred, the pleadings in the plaint should apparently disclose the facts revealing the bar to the suit instituted by the plaintiff. The conclusion under Clause (d) regarding the bar to the suit cannot be arrived at on the basis of materials extraneous to the pleadings in the plaint. The jurisdiction of the Court to take action under Order 7, Rule 11(d), C.P.C. can arise only in case where the pleadings in the plaint are sufficient to disclose the bar to the suit, and not otherwise. Learned Counsel therefore submits that this is a fit case for remand so that the point of limitation can be tried as a mixed question of facts and law, after evidence is led by the parties. 11. On the other hand, Mr. Learned Counsel therefore submits that this is a fit case for remand so that the point of limitation can be tried as a mixed question of facts and law, after evidence is led by the parties. 11. On the other hand, Mr. Padiyar, learned Counsel on behalf of defendant concedes that the documents produced by the defendants could not be looked into even for the purpose of ascertaining the dates with reference to the documents referred to by the plaintiffs in the plaint. Nevertheless, Mr. Padiyar. learned Counsel submits that the plaint read as a whole clearly discloses that the relief sought by the plaintiffs are clearly time barred. Learned Counsel on behalf of the defendant further submits that the plaintiff have not pleaded a number of dates on which the documents came to be made which are otherwise referred to in the plaint so as to camouflage the cause of action and keep the same beyond limitation. Mr. Padiyar, learned Counsel has further submitted that the plaintiff has not sought the cancellation of a sale deed nor have made the sellers or their legal representatives as parties to the suit. It is further contended that the plaintiff was very much a party to the sale deed executed on 18-10-1988 and therefore he had both actual and constructive notice of the contents of the sale deed and therefore now cannot be heard to say that he came to know about the contents only in the year 2005 when the sale deed is alleged to have been produced before the District Court. Mr. Padiyar, learned Counsel has referred to the provisions of Section 3 of the Transfer of Property Act, 1882 and to Sections 17, 47 and 60 of the Registration Act, 1908 to support his submissions. Mr. Padiyar has also placed reliance on a number of Judgments to which a brief reference can be conveniently made. 12. In the case of Shri. Rajendera Vassudev Porob Dessai Deshprabhu Rauraje and others Vs. Mr. Padiyar has also placed reliance on a number of Judgments to which a brief reference can be conveniently made. 12. In the case of Shri. Rajendera Vassudev Porob Dessai Deshprabhu Rauraje and others Vs. Smt. Sitadevi alias Jaya Raghuraj Deshprabhu and others (unreported Judgment of this Court dated 15-9-2005 in First Appeal No.111 of 1999) the Court took note that the suit was filed for a declaration that the plaintiffs were the exclusive owners of the suit property and for a decree that the entry in the office of the City Survey at Mapusa, in the name of late Raghuraj Vassudev Deshprabhu was an erroneous entry and it should be corrected accordingly and also be cancelled. This Court noted that both the said prayers would show that both prayers related to declaration and though the entry in the City Survey record of which declaration is sought was made on 2912-1978, the suit came to be filed on 1-2-1990. The Court noted that in para 6, except a vague statement that to the surprise of the original plaintiff, it was noticed some time back when the plaintiff inspected the file in the City Survey Office and found that the name of Raghuraj was recorded along with the original plaintiff, there was no specific date given. This Court further noted in para 13 that though it was averred that the cause of action arose in the month of June, 1989, the same cannot be accepted for want of specific date on which the plaintiff came to know that the name of his brother Raghuraj was also recorded along with him. The limitation for the declaration as prayed for by the plaintiffs was covered by Article 58 of the Limitation Act, 1963, which provides for three years when the right to sue first accrues. Apparently, the Court observed that the suit was time barred. The Court noted that it had to be presumed in the circumstances that the original plaintiff was aware of the said entry when it came to be made in the year 1978 or immediately thereafter and since the suit was filed in the year 1990 the same was clearly time barred. 13. In the case of Raj Narain Sarin Vs. The Court noted that it had to be presumed in the circumstances that the original plaintiff was aware of the said entry when it came to be made in the year 1978 or immediately thereafter and since the suit was filed in the year 1990 the same was clearly time barred. 13. In the case of Raj Narain Sarin Vs. Laxmi Devi ( (2002)10 SCC 501 ), the Apex Court noted that on the analysis of the plaint, apart from there being a mere bald statement that the sale deed has nothing to do with the rest of the area i.e. 6 bighas, 13 biswas and the bungalows built thereon which stand to be owned and possessed by the plaintiff and prior to him by Munni Lal, there is no other averment tracing the title for 6 bighas and 13 biswas. Admittedly, several portions of the plot stood demarcated as being 3 bighas, 13 biswas and the other being 6 bighas 13 biswas; whereas there was no dispute as regards 3 bighas 13 biswas but the conferment of title on the plaintiff as regards 6 bighas 13 biswas is not available in the plaint itself. The plaint is totally silent on that score, though, however, the existence of the deed of sale noticed above stands accepted by the plaintiff. The Court proceeded to hold that in their view the litigation could but be termed to be utterly vexatious and abuse of the Sale Deed in respect of 6,667 sq. metres of land. As far as the balance area is concerned, the Petitioner is at liberty to institute such proceedings as are permissible in law and all contentions of both sides in that behalf are kept open. It is clarified that merely because the petitioner is a party to the sale deed to the extent of 6667 sq. metres, will not preclude it from claiming the larger area after the redemarcation and measurement as directed above is complete. Until redemarcation is done, the Board will not develop or construct upon the area designated as open spaces for the subject plots "A" and "B", so that these areas can also be dealt with in accordance with law. 59. The writ petition is disposed off with the above orders and directions. However, there will be no orders as to costs. Petition disposed off.