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2023 DIGILAW 1196 (AP)

Vishwa Vani Society v. Pydi Eedward Vinodh

2023-08-14

U.DURGA PRASAD RAO

body2023
JUDGMENT 1. This C.R.P. is filed by the petitioners / defendants 1 and 2 challenged the order dtd. 3/2/2023 in I.A.No.325/2016 in O.S.No.62/2016 passed by the learned XI Additional District Judge, Visakhapatnam, dismissing the petition filed by the petitioners under Order VII Rule 11 r/w 151 CPC to reject the plaint. 2. The facts are briefly thus: (a) The 1st respondent / plaintiff filed O.S.No.62/2016 pleading that his mother was the original owner of the site purchased under a registered Sale Deed dtd. 26/8/1980 and later she gifted to plaintiff under a registered Gift Deed dtd. 7/10/1985 and thereafter the plaintiff having obtained approval of plan from GVMC and constructed a RCC building with his own amount, which is the plaint schedule property. (b) The plaintiff on account of his employment resides in Australia along with his family members. While his mother used to stay in the said building by letting out one portion to tenants, the 3rd defendant used to stay in one portion as tenant by running the office of 1st defendant which is a religious organization. Out of faith in Christianity, the plaintiff's mother believed the defendants and allowed them to stay in one portion on a monthly rent of Rs.2,000.00. She died on 23/3/2013 and the plaintiff came to India to attend her obsequies. At the time, the 3rd defendant requested him to allow him to stay in the schedule house for one year till they get alternative accommodation. The defendants paid rents till June 2015 and committed default thereafter. In October 2015, the plaintiff came to India and asked the 3rd defendant about the rents and at that time strangely the 3rd defendant stated that they purchased the schedule property from his mother and hence, they will not pay the rent. They produced the Xerox copy of the Sale Deed. The plaintiff came to know about the said fraudulent transaction as his mother, having gifted the said property to him, had no right to sell the same to the defendants. In addition to that, the gift was accepted long back and plaintiff constructed house property thereon by spending huge amounts. Thus, the defendants obtained Sale Deed by playing fraud taking advantage of the plaintiff staying in abroad and his mother's old age. No possession was delivered to the defendants as the plaintiff's mother never vacated the schedule premises till her death. Thus, the defendants obtained Sale Deed by playing fraud taking advantage of the plaintiff staying in abroad and his mother's old age. No possession was delivered to the defendants as the plaintiff's mother never vacated the schedule premises till her death. (c) The further case of the plaintiff is that since the plaintiff stays in abroad, he gave power of attorney to his co-brother and he obtained information that during January 2016 the defendants illegally removed the existing building bearing D.No.38/32/75 constructed by the plaintiff and they are trying to construct a new building though the existing building is in good condition. Hence, he filed the suit for declaration that he is the absolute owner and for recovery of possession of the plaint schedule premises along with damages. (d) While so, the defendants 1 and 2 filed I.A.No.325/2016 under Order VII Rule 11 CPC r/w 151 CPC on the main grounds that the plaintiff was fully aware of the fact that his mother cancelled the Gift Deed dtd. 7/10/1985 by way of a registered Cancellation Deed dtd. 5/8/1988 and thereafter, in order to clear her loans obtained from Visakhapatnam Cooperative Bank she sold the plaint schedule property in favour of defendants by virtue of registered Sale Deed dtd. 31/5/2000. The plaintiff has deliberately not challenged the Cancellation Deed dtd. 5/8/1988 and the Sale Deed dtd. 31/5/2000 because long back, the reliefs were barred by limitation. Therefore, the plaint is bereft of the cause of action besides the suit is barred by law of limitation and hence, the plaint is liable to be rejected. (e) The plaintiff filed counter opposing the above petition and contending that the cancellation of Gift Deed is not recognized under law as it was cancelled without the consent or knowledge of the plaintiff and it was not known to the plaintiff. It is further contended that the cause of action has been clearly mentioned in the plaint. The cancellation of Gift Deed need not be challenged as it is void and not within the knowledge of the plaintiff. Further, the Gift Deed was acted upon and plaintiff's mother delivered the schedule site to plaintiff pursuant to the Gift Settlement Deed and the plaintiff constructed a building after necessary approval from GVMC and so, the cancellation of the Gift Deed and subsequent execution of Sale Deed dtd. Further, the Gift Deed was acted upon and plaintiff's mother delivered the schedule site to plaintiff pursuant to the Gift Settlement Deed and the plaintiff constructed a building after necessary approval from GVMC and so, the cancellation of the Gift Deed and subsequent execution of Sale Deed dtd. 31/5/2000 are ab initio void which can be decided in the suit after trial. (f) The trial Court on hearing both parties dismissed the petition on the observation that the objection on the ground that the plaint is barred by limitation is a mixed question of fact and law which can be decided only after full-fledged trial and the suit was filed immediately after knowing about execution of the Sale Deed in favour of the defendants and therefore, the arguments raised by the defendants can be appreciated only at the stage of judgment after both parties adduce the evidence. Hence, the C.R.P. 2. Heard arguments of learned Senior Counsel Sri O.Manohar Reddy representing Smt. Kalla Tulasi Durgamba, counsel for petitioner, and Sri P.Rajkumar, counsel for the respondents. 3. Learned senior counsel for petitioner Sri O.Manoher Reddy would argue that respondent plaintiff very well knew about the cancellation of the Gift Deed made by his mother through registered document dtd. 5/8/1988 and subsequently executing the sale deed dtd. 31/5/2000 in favour of the petitioners/defendants, however, by ingenious pleadings in the cause of action part of the plaint, without disclosing the same, he simply narrated as if during October 2015 he came to know through the 3rd defendant that the defendants have purchased the schedule property and accordingly, filed the suit for declaration and recovery of possession. Learned Senior Counsel would argue that in fact the plaintiff ought to have sought for the relief of setting aside the Cancellation Deed dtd. 5/8/1988 and subsequent Sale Deed dtd. 31/5/2000 executed by his mother. However, since the plaintiff knew that those prayers were barred by limitation, by trick and camouflage, he did not mention those facts in the cause of action part and simply filed the suit for declaration of his title and for recovery of possession, which in its present form is not maintainable. Learned Senior Counsel would thus argue that the plaint is liable to be rejected on two grounds. Learned Senior Counsel would thus argue that the plaint is liable to be rejected on two grounds. Firstly, that there is no cause of action in the plaint since true cause of action has not been shown and secondly the two relevant reliefs i.e., setting aside the document cancelling the Gift Deed and the cancellation of Sale Deed were barred by limitation. He placed reliance on (i) State of Punjab v. Gurdev Singh, (1991) 4 SCC 1 . (ii) Sneh Gupta v. Devi Sarup, (2009) 6 SCC 194 . (iii) Raghwendra Sharan Singh v. Ram Prasanna Singh (Dead) by LRs., (2020) 16 SCC 601 . (iv) Dahiben v. Arvindbhai Kalyanji Bhanusali (Gajra) Dead through LRs, (2020) 7 SCC 366 . (a) He would thus argue on the premise that the plaint if bereft of any worthy and true cause of action and cause of action projected is not a correct cause of action to take up the suit for trial and nextly, if the correct cause of action with relevant relief is mentioned, the suit will be barred by limitation and therefore, it would be a fit case for rejection of plaint under Order VII Rule 11 CPC. 4. Per contra, while severely remonstrating petitioner's arguments, learned counsel for respondents Sri P.Rajkumar would argue that the plaintiff till before filing of the suit had no knowledge about the cancellation of the Gift Deed and execution of the Sale Deed by his mother in favour of the defendants and since the gift was accepted and acted upon immediately in the year 1985 itself and the plaintiff had constructed a building on the suit schedule site and has been in active possession thereof, the plaintiff's mother had no right, or title to make a unilateral cancellation of the Gift Deed and even if she did so, that would be void ab initio and consequently she had no right to execute Sale Deed in favour of defendants and therefore, the plaintiff need not seek for cancellation of such void documents and thereby, the question of suit being dismissed as being barred by limitation does not arise. In the plaint, relevant facts constituting the cause of action have only been mentioned. In the plaint, relevant facts constituting the cause of action have only been mentioned. He would argue that the Court has to look into the facts mentioned in the plaint to decide whether the plaint projected a true cause of action and whether the reliefs claimed are well within the period of limitation, while considering the petition filed Order VII Rule 11 CPC and it need not go by the facts in written statement or in the affidavit filed under Order VII Rule 11 CPC. He placed reliance on Chhotanben v. Kiritbhai Jalkrushnabhai Thakkar, (2018) 6 SCC 422 . (ii) Urvashiben v. Krishnakant Manuprasad Trivedi, (2019) 13 SCC 372 . (iii) Shaukathussain Mohammed Patel v. Khatunben Mohmmedbhai Polara, (2019) 10 SCC 226 . (iv) G.Nagaraj v. B.P.Mruthunjayanna,2023 Livelaw (SC) 311. 5. The point for consideration is whether there are merits in the C.R.P. to allow? 6. Point: As can be seen from Para 5 of the petitioner's affidavit in I.A.No.325/2016 in O.S.No.62/2016, the contention of the petitioners/defendants is that the cause of action projected in the plaint is not the true cause of action, inasmuch as, therein the plaintiff has not mentioned about his knowledge about the gift Cancellation Deed and Sale Deed executed by his mother and not made a prayer for cancelation of those two documents, for, such a prayer would be barred by limitation which the plaintiff knows very well. Since the suit is barred by limitation, the plaint can as well be rejected under Order VII Rule 11(d) CPC. 7. Be that as it may, it is trite law that in order to consider an application under Order VII Rule 11(d) CPC, the Court has to look into the plaint averments and documents filed along with the plaint but not the averments in the written statement. It has been so held in Chhotanben's case (5 supra) 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). 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." a) In other decisions relied upon by the learned counsel for respondent also, the same proposition of law has been reiterated. In that view, when plaint averments are perused, in Para III(b) and (c) the plaintiff mentioned as follows: "(b) xxxxx They (defendants) paid rents till June 2015 and subsequently they failed to pay rents and during October 2015 when the plaintiff came to India and asked the 3rd defendant about the rents, the 3rd defendant stated that they have purchased the schedule property from his mother and they need not pay any rent. They have furnished the Xerox copy of the said document. (c) The plaintiff humbly submits that he was astonished and questioned 3rd defendant about the fraudulent deed obtained from his mother as his mother has no right to execute such Sale Deed in view of the registered Gift settlement Deed executed by her in his favour on 7/10/1985 itself. The Gift Deed was accepted and acted upon and in view of the Gift Settlement Deed the plaintiff obtained necessary approval for construction of building and spent huge amounts and out of affection he allowed his mother to stay in the schedule property on lease. The plaintiff's sister Poornima also used to come to the schedule house once or twice in a month till the death of plaintiff's mother and used to stay in the schedule property. The plaintiff's mother never informed about the execution of Sale Deed and as she is a Christian, the 3rd defendant taking advantage of her faith in the Christianity taken away all the original records including Gift Deed and the plaintiff understood that in a fraudulent and deceitful manner the defendants obtained Sale Deed which is illegal and not binding on the plaintiff as no possession was delivered in view of the alleged Sale Deed and the plaintiff's mother never vacated the schedule premises and till her death she used to reside in the schedule premises." b) In cause of action paragraph also, the plaintiff has, more or less narrated the similar facts. Thus, the plaintiff claims that he came to know about the Sale Deed of the defendant and also the Gift Cancellation Deed during October 2015. According to him, the Gift Deed was acted upon in the year 2015 itself and thereafter, having obtained approval of municipal plan he constructed a building on the suit schedule site. Whereas, the defendants are contending that the plaintiff very well knew about the cancellation of Gift Deed and about defendants' purchasing the suit schedule property from his mother immediately after the Sale Deed and therefore, the suit without seeking relief of cancellation of the aforesaid documents is not sustainable and such prayer even if made will be barred by limitation. 8. In the light of above respective contentions, when the plaintiff got the knowledge about the cancellation of the Gift Deed and execution of Sale Deed by his mother is purely a question of fact which has to be decided only after trial. The defendants cannot claim such knowledge on the part of plaintiff by way of their counter plea at the inceptional stage of the suit. Running the risk of pleonasm, the said fact has to be decided only after trial. However, for the purpose of considering the Order VII Rule 11(d) application, when the plaint facts are perused, they are discernable to the effect that the plaint contains proper cause of action which does not per se disclose that the suit is barred by limitation. Therefore, the trial Court has rightly dismissed the I.A.No.325/2016 and there are no grounds to interfere with the said order. The decisions relied upon by the petitioner will not advance their cause. 9. Accordingly, the C.R.P. is dismissed. No costs. As a sequel, interlocutory applications, pending if any shall stand closed.