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2020 DIGILAW 478 (GUJ)

Jilubhai Jamubhai v. Bahadurbhai Jamabhai

2020-03-26

HARSHA DEVANI, SANGEETA K.VISHEN

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JUDGMENT : (Sangeeta K. Vishen, J.) 1. The present appeal has been filed against the order dated 12th June, 2019 passed by the learned Senior Civil Judge, 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, 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. 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, 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 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. Resultantly, the appellants procured all the relatable entries and documents from the office of the Sub Registrar, Sanand which were provided to the appellants 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 submitted that the execution of the sale deed dated 2nd 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. 6. Mr. Sanat Pandya, learned advocate for the appellants submitted that the execution of the sale deed dated 2nd 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 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 2nd 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 (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. 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 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. 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: Article Description of Suit Period of Limitation Time from which 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 attained majority. Three years When the wards 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. 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: 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 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 the land 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 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. 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 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. 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 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. 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 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 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.