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2020 DIGILAW 327 (TS)

Kovalakonda Rama Krishna v. E. Krishna

2020-03-02

A.RAJASEKHAR REDDY

body2020
ORDER : 1. This civil revision petition, under Article 227 of the Constitution of India, is filed aggrieved by the order dated 13.11.2010 passed in IA No. 1015 of 2019 in OS No. 2052 of 2011 by the II Addl. Senior Civil Judge, Ranga Reddy District at LB Nagar, whereby the application filed under Order VII Rule 11 read with Section 151 of the Code of Civil Procedure, 1908 (for short ‘CPC’) to reject the plaint on the grounds of limitation and non-disclosure of cause of action, was dismissed. The parties hereinafter will be referred to as they are arrayed in the suit. 2. The briefly stated facts are - Plaintiff is the 1st respondent herein. Suit OS No. 2052 of 2011 was filed to declare the plaintiff as the absolute owner of the suit property, to delivery of possession of the property and to declare the registered GPA Doc. No. 83/1991, dated 11.2.1991, registered at Sub-Registrar, Hayathnagar, Ranga Reddy District, as null and void and impersonated and on decreeing the suit, to send the decree to the concerned Sub-Registrar to enter the same in the EC register. In the suit, the case of the plaintiff is that he is the absolute owner and possessor of house property bearing Plot No. 75, H. No. 8-5-195, consisting of two rooms and open place in Survey No. 6/3, situated at Weaker Section Colony, Karmanghat Village, Saroornagar Mandal, Ranga Reddy District, (for short “the suit property”) allotted by A.P. State Housing Corporation Limited, vide Patta Certificate in Proceedings No. RC/L3/196/75-LWS, dated 12.10.1978, and delivered possession to him. That he is paying electricity charges to the authorities concerned in respect of the suit property till date. While so, the revision petitioner-1st defendant, without any manner of right, title or interest over the suit property, created GPA bearing Doc. No. 83 of 1991, dated 11.2.1991, allegedly as if executed by plaintiff in favour of 3rd defendant. Thereafter, based on the said created GPA, the 3rd defendant had executed sale deed, bearing Doc. No. 11283 of 1993, dated 29.9.1993 in favour of 2nd defendant, who in turn again executed registered GPA vide Doc. No. 4367 of 2011, dated 10.6.2011, in favour of 1st defendant. The case of the plaintiff is that he never executed any GPA Doc. Thereafter, based on the said created GPA, the 3rd defendant had executed sale deed, bearing Doc. No. 11283 of 1993, dated 29.9.1993 in favour of 2nd defendant, who in turn again executed registered GPA vide Doc. No. 4367 of 2011, dated 10.6.2011, in favour of 1st defendant. The case of the plaintiff is that he never executed any GPA Doc. No. 83 of 1991 in favour of the 3rd defendant and such a document has been forged, created and impersonated one. Hence, the suit for the reliefs noted above. 3. The interlocutory application was filed by the 1st defendant on the ground that the alleged GPA Doc. No. 83/1991 pertains to the year 1991, whereas the suit is instituted in the year 2011, i.e. after lapse of 20 years, therefore, the suit filed is beyond the period of limitation. It was also pleaded that as per Section 3 of the Transfer of Property Act, 1882, registration of a document itself is a notice to the stake holders and the plaintiff cannot plead ignorance of the document of the year 1991. 4. The said interlocutory application was dismissed on two grounds firstly; the plea of constructive notice is only a defence and can be decided in the suit and secondly; the question of limitation is a mixed question of fact and law and the issue raised will have to await the trial of the suit. Aggrieved by the same, this revision petition. 5. Learned Counsel for the 1st defendant submitted that plaintiff in his plaint vaguely submitted that he came to know about execution of the alleged GPA Doc. No. 83/1991, in the year 2011 and immediately he filed the suit. It is further contended that when once a registered document is executed, it is a constructive notice to all concerned and per Section 3 of the Limitation Act, 1963 (for short ‘the Limitation Act’) the limitation starts from the date of presentation of the plaint. It is also contended that the Trial Court has not considered the matter earnestly though the facts patently appear to suggest that the suit is instituted beyond the period of limitation and in a routine manner dismissed the application. Learned Counsel in support of his contentions, placed reliance on the decision of the Apex Court in Raghwendra Sharan Singh vs. Ram Prasanna Singh (Dead) by LRs. Learned Counsel in support of his contentions, placed reliance on the decision of the Apex Court in Raghwendra Sharan Singh vs. Ram Prasanna Singh (Dead) by LRs. 2019 (3) ALD 177 (SC) and the decision of this Court in KLV Prasada Rao vs. K. Venkateswara Goud, 2008 (2) ALD 669 . 6. On the other hand, learned Counsel for the plaintiff submitted that the suit is filed for declaration of alleged GPA Doc. No. 83/1991 as null and void and to declare the plaintiff is the owner of the property and direct the defendants to deliver possession and the relief sought is within limitation as Article 64 of the Limitation Act which relates to recovery of possession and Article 59 of the Limitation Act relates to cancellation or to set aside an instrument etc. It is stated that limitation starts to run from the date of knowledge as per Article 59 of the Limitation Act. He also submits that the presumption under Section 3 of the Transfer of Property Act, 1882, is only a rebuttal presumption and at any rate, the plea of maintainability of the suit on the ground of limitation being a question of law and fact, cannot be gone into at the stage of deciding the application filed under Order VII Rule 11 CPC and the Trial Court rightly dismissed the application observing that the said aspects will have to be established during the course of trial. Learned Counsel placed reliance on the decision of the Apex Court in Chhotanben vs. Kiritbhai Jalkrushnabhai Thakkar, 2018 (5) ALD 29 (SC) : AIR 2018 SC 2447 . Learned Counsel also submits that the law laid down by this Court in KLV Prasada Rao's case (supra), is not a correct proposition law in view of the decision in Chhotanben's case (supra). 7. The issue in this case relates to rejection of plaint on the ground that suit is barred by limitation and also for nondisclosure of cause of action. The relevant provision is Order VII Rule 11 CPC, which reads as follows: “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. 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 returned 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 is not filed in duplicate. (f) where the plaintiff fails to comply with the provisions of Rule 9: 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 from correcting the valuation or supplying the requisite stamp-paper, as the case may be, within the time fixed by the Court and that refusal to extend such time would cause grave injustice to the plaintiff.” 8. We are concerned with clauses (a) and (d) of Rule 11 Order 7 CPC. According to the plaint, the cause of caution reads as follows: “Cause of action - The Cause of action arises for filing the present suit in the first week of September, 2011 when the defendant No. 1 tried to occupy the suit property basing on the created documents. After knowing the illegal and created documents the plaintiff obtained the certified copies with the help of E.C. and got issued the legal notice on 27.9.2011 and Caution Paper publication on 28.9.2011. The Cause of action again arisen to the present suit on 10.10.2011 when the defendant No. 1 illegally and high handedly occupied the suit property under guise of created and invalid documents. The defendant No. 1 still continuing in the possession of the suit property, as such the cause of action is still subsisting.” 9. The assertion of the plaintiff is that he came to know about the transaction of registered GPA Doc. The defendant No. 1 still continuing in the possession of the suit property, as such the cause of action is still subsisting.” 9. The assertion of the plaintiff is that he came to know about the transaction of registered GPA Doc. No. 83/1991, on 27.9.2011 when the plaintiff got issued legal notice, on 28.9.2011 when he caused issuance of paper publication, and on 10.10.2011 when the 1st defendant illegally and high handedly occupied the suit property under the guise of the created document and on obtaining certified copies of the created documents on 20.10.2011, he filed the suit on 9.11.2011 and that the suit filed is within limitation period. 10. Article 59 of the Limitation Act, 1963, speaks of period of limitation for cancellation or setting aside an instrument or a decree or for recession of a contract. Article 59 reads as under: Description of suit Period of limitation Time from which period begins to run To cancel or set aside an instrument or decree or for the rescission of a contract Three years When the facts entitling the plaintiff to have the instrument or decree cancelled or set aside or the contract rescinded first become known to him. 11. From the above it is clear that to cancel or set aside an instrument or decree or for the rescission of a contract, the limitation starts from the date of knowledge of execution of document in question sought to be cancelled. The plaintiffs case is that he came to know about the transaction only two months prior to filing of the suit. The suit relief also includes the relief of recovery of possession of suit property. Article 64 of the Limitation Act provides for the same, which reads thus: Description of suit Period of limitation Time from which period begins to run For possession of immovable property based on previous possession and not on title, when the plaintiff while in possession of the property has been dispossessed Twelve years The date of dispossession 12. A reading of Article 64 of the Limitation Act goes to show that in a suit filed for recovery of immovable property, the limitation is 12 years and the limitation starts from the date of dispossession. The plaintiff alleges that he was dispossessed on 10.10.2011 and suit is filed on 9.11.2011, and, therefore, prima facie, the suit is within limitation. 13. The plaintiff alleges that he was dispossessed on 10.10.2011 and suit is filed on 9.11.2011, and, therefore, prima facie, the suit is within limitation. 13. It is a well-settled principle of law that while deciding an application under Order 7 Rule 11 CPC, the averments made in the plaint are germane and plea taken by the defendant in the written statement would be wholly irrelevant at that stage. Chhotanben vs. Kiritbhai Jalkrushnabhai Thakkar's case (supra). In Para 8 of the plaint, the plaintiff averred that he never executed the registered GPA Doc. No. 83/1991 in favour of 3rd defendant and the plaintiff came to know about the impersonated GPA for the first time in the first week of September, 2011 when the 1st defendant tried to occupy the suit property and the 1st defendant in fact occupied the suit property on 10.10.2011, after he received the legal notice got issued by plaintiff. Whether such assertion is true or false can be decided when both sides lead evidence. The facts brought before the Court in the interlocutory application, on the face of it, does not inspire the confidence of the Court to come a conclusion that the suit is barred by limitation and reject the plaint, at the threshold. 14. The Apex Court in Chhotanben's case (supra), while considering the provisions of Order 7 Rule 11(d) CPC at Paras 15, 16 and 17 held as under: “15. What is relevant for answering the matter in issue in the context of the application under Order VII Rule 11(d) CPC, 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 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 and 2, in favour of Jalkrushnabhai Prabhudas Thakkar or defendant Nos. 3 to 6. 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 and 2, in favour of Jalkrushnabhai 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 realized 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 and 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 and 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. 16. 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 vs. State of Maharashtra, Mayar (H.K.) Ltd. vs. Owners and Parties, Vessel M.V. Fortune Express and also T. Arivandandam vs. T.V. Satyapal. 17. These decisions have been noted in the case of Church of Christ Charitable Trust and Educational Charitable Society vs. Ponniamman Educational Trust, where this Court, in Paragraph 11, observed thus: 11. 17. These decisions have been noted in the case of Church of Christ Charitable Trust and Educational Charitable Society vs. Ponniamman Educational Trust, where this Court, in Paragraph 11, observed thus: 11. This position was explained by this Court in Saleem Bhai vs. State of Maharashtra, in which, while considering Order 7 Rule 11 of the Code, it was held as under: (SCC P. 560, Para 9) 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 scrutinize 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 and Co. Ltd. vs. Ganesh Property and Mayar (H.K.) Ltd. vs. Vessel M.V. Fortune Express.” (Emphasis supplied) 15. 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 and Co. Ltd. vs. Ganesh Property and Mayar (H.K.) Ltd. vs. Vessel M.V. Fortune Express.” (Emphasis supplied) 15. The facts in the present case and the facts in Chhotanben's case (supra), are almost similar as in Chhotanben 's case (supra), the plaintiffs also asserted that they came to know about the impugned sale deed executed by the defendants 1 and 2 in the year 2013 and the suit was filed within the period of limitation from the date of their knowledge and such a contingency put forth by the plaintiffs therein was approved by the Apex Court and the ratio laid down therein fully applicable to the facts of the case. 16. In another decision, the Apex Court in Raghwendra Sharan Singh's case (supra), referred to the earlier decisions on the subject in T. Arivandandam vs. TV. Satyapal, Church of Christ Charitable Trust and Educational Charitable Society vs. Ponniamman Educational Trust, A.B.C. Laminart Pvt. Ltd. vs. A.P. Agencies, Sopan Sukhdeo Sable vs. Assistant Charity Commissioner, Madanuri Sri. Rama Chandra Murthy vs. Syed Jalal and Ram Singh vs. Gram Panchayat, Mehal Kalan, at Paras 8 and 9 of the decision held as follows: “8. Now, so far as the application on behalf of the original plaintiff and even the observations made by the learned Trial Court as well as the High Court that the question with respect to the limitation is a mixed question of law and facts, which can be decided only after the parties lead the evidence is concerned, as observed and held by this Court in the cases of Sham Lal Altos Kuldip's case (supra), as well as in the case of Ram Prakash Gupta's case (supra), considering the averments in the plaint if it is found that the suit is clearly barred by law of limitation, the same can be rejected in exercise of powers under Order 7 Rule 11(d) of the GP.C. 9. In view of the above and for the reasons stated above, we are of the opinion that both the High Court as well as the learned Trial Court have erred in not exercising the powers under Order 7 Rule 11 of the CPC and in not rejecting the plaint in exercise of powers under Order 7 Rule 11 of the CPC. For the reasons stated above, the impugned judgment and order passed by the High Court as well as the Trial Court cannot be sustained and the same deserve to be quashed and set aside. Consequently, the impugned judgment and order passed by the High Court dated 12.3.2013 as well as the order passed by the Munsif, Danapur rejecting the Order 7 Rule 11 application filed by the original defendant are hereby set aside. Consequently, the application submitted by the appellant herein original defendant to reject the plaint under Order 7 Rule 11 of the CPC is hereby allowed and the plaint, being Title Suit No. 19 of 2003 is hereby rejected. The present appeal is allowed accordingly in terms the above. No costs.” 17. In the above case, the Apex I Court having noticed that the suit filed to declare the gift deed executed in favour of the defendant as sham transaction and not binding by the plaintiff, who himself alongwith his deceased brother were the executors of the gift deed, as long back as on 6.3.1981 and the suit filed after a period of 22 years from the date of the execution of the gift deed, held that the plaintiff cleverly omitted to seek the relief for declaration to set aside the gift deed and if such a prayer would have been asked, in that case, the suit can be said to be clearly barred by limitation and in the result allowed the appeal and rejected the plaint. 18. But, facts in that case are different from the facts in the present case. In this case the case of the plaintiff is that he has been in possession of the suit property upto 10.10.2011 and has been paying taxes in respect of the suit property. The plaintiff's simple complaint is that the 1st defendant created registered GPA Doc. 18. But, facts in that case are different from the facts in the present case. In this case the case of the plaintiff is that he has been in possession of the suit property upto 10.10.2011 and has been paying taxes in respect of the suit property. The plaintiff's simple complaint is that the 1st defendant created registered GPA Doc. No. 83 of 1991 as if it has been executed by the plaintiff in favour of the 3rd defendant, who in turn created sale deed dated 29.9.1993 in favour of the 2nd defendant and basing on the sale deed, the 2nd defendant executed AGPA Doc. No. 4367 of 2011, dated 10.6.2011 in favour of the 1st defendant. Hence, the decision of the Apex Court in Raghwendra Sharan Singh's case (supra), is not applicable to the facts of the present case. 19. In KLV Prasada Rao's case (supra), the learned Judge considering the facts of the case, at Para 27 of the order observed that the averments in the plaint as well as the documents, annexed to the plaint disclosed that the plaintiffs had knowledge of the transaction in the year 2000 itself, but they did not choose to challenge the same within the period of limitation and, therefore, the suit was barred by limitation. In the present case, no such material is placed to show that the plaintiff has acquired knowledge of the transaction prior in point of time other than the date of knowledge pleaded by the plaintiff in the suit, and this aspect as to be decided in the suit during the course of the trial. The aspect that registration of a document itself is a deemed notice under Section 3 of the Transfer of Property Act cannot be considered at the state of considering the application filed under Order 7 Rule 11 CPC. With respect the observations made by the learned Judge in KLV Prasada Rao's case (supra) at Para 27, in my considered view, are not in consonance with the ratio laid by the Apex Court in Chhotanben's case (supra). With respect the observations made by the learned Judge in KLV Prasada Rao's case (supra) at Para 27, in my considered view, are not in consonance with the ratio laid by the Apex Court in Chhotanben's case (supra). The provision, Article 59 of the Limitation Act, which relates to cancellation or to set aside an instrument or decree or for rescission of a contract, the limitation prescribed is three years from the date of knowledge; and under Article 64 of the Limitation Act, which relates to filing of suit for recovery of possession of immovable property, the limitation prescribed is twelve years and these provisions were not brought to the notice of the learned Judge and not considered, therefore, the observation that registration of a document itself is a deemed notice under Section 3 of the Transfer of Property Act is per incuriam atleast at the stage of deciding the application filed under Order 7 Rule 11 CPC. 20. In view of the facts and circumstances of the case, this Court is of the view that the Trial Court has not committed any error of law in dismissing the interlocutory application. It goes without observing that any observations made on the merits of the matter are only for the purpose to decide the civil revision petition. The civil revision petition is accordingly dismissed. Miscellaneous petitions, if any, pending in this revision petition shall stand closed. There shall be no order as to costs.