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2024 DIGILAW 1569 (GUJ)

Khimjibhai Hirabhai Baraiya v. Suyash Infracon

2024-07-18

BIREN VAISHNAV, NISHA M.THAKORE

body2024
ORDER : (PER : HONOURABLE MR. JUSTICE BIREN VAISHNAV) 1. This first appeal filed under Sec.96 r/w. Section 105 of the Code of Civil Procedure, arises out of the judgement and order dated 17.09.2022, passed by the Principal Senior Civil Judge, Gandhinagar in Special Civil Suit No. 30 of 2021. The appellant is the original plaintiff. He filed Special Civil Suit No. 30 of 2021 with the plaint stating the following facts: 1.1 The subject matter of the suit was land at village Kudasan, District: Gandhinagar of Block Survey No.120 (Old Survey No.117). The total area of the land was 14,302 sq.mtrs. Of the 14,302 sq.mtrs of land, 2,864 sq.mtrs was acquired for the purposes of laying a road leaving a total area of 11,168 sq.mtrs. 1.2 It was the case of the plaintiff that the land admeasuring 14,032/- sq.mtrs was originally owned by two co-owners, Jetha Vala and Kachra Mula. Both held 7,016 sq.mtrs each, i.e. half the share of the total of 14,032 sq.mtrs. From the total joint land holding 2,864 sq.mtrs having been acquired, the shareholding of Jetha Vala and Kachra Mula was reduced to 5,584 sq.mtrs (after deduction of 1,432 sq.mtrs from each land owner), being half portion of the 2,864 sq.mtrs having been acquired for the purposes of laying out a road. 1.3 The plaintiff further stated that Jetha Vala sold his share by a registered Sale Deed on 04.07.1985 to one Shankarbhai Patel. The legal heirs of Shankarbhai Patel, by a Sale Deed dated 04.08.1995, sold the land to the plaintiff. Pursuant to the proceedings under the Fragmentation Act, the Sale Deed in favour of the plaintiff was cancelled and so was the revenue entry made in favour of the State. 1.4 On a challenge to the proceedings under the Fragmentation Act, the plaintiff succeeded in the High Court and hence the plaintiff’s name was entered in the revenue record. However, the revenue record showed the holding as 4,152 sq.mtrs and not original holding of 5,542 sq.mtrs. In other words, there was a wrongful deletion of 1,432 sq.mtrs of land. This was a pleading based on perception that since the total deduction of land, pursuant to acquisition proceedings of 2,864 sq.mtrs was from both the joint owners, and therefore, the extra deduction of 1,432 sq.mtrs from his land should have been a deduction from the land of Kachra Mula. This was a pleading based on perception that since the total deduction of land, pursuant to acquisition proceedings of 2,864 sq.mtrs was from both the joint owners, and therefore, the extra deduction of 1,432 sq.mtrs from his land should have been a deduction from the land of Kachra Mula. The plaintiff, therefore, stated that he then sold 4,152 sq.mtrs of land to one Shetalbhai D. Patel on 06.05.2014 and continued to hold the land of 1,432 sq.mtrs. 1.5 The plaintiff’s case further is that the defendant No.2 in breach of faith sold this parcel of land admeasuring 1,432 sq.mtrs to defendant No.1 by a registered Sale Deed dated 02.07.2019. Accordingly, the part of land, namely, 1,432 sq.mtrs belonging to the applicant was sold further by defendant No.2 to defendant No.1. Therefore, according to the plaintiff, the cause of action to file the suit occurred when the actual half was sold by defendant No.2 to defendant No.1 and interfered with the possession of this 1,432 sq.mtrs, thought it was a part of 5,582 square meters which the plaintiff owned. 1.6 The case of the plaintiff was that he had a cowshed which he was forced to remove as defendant No.2 had taken possession of land. Accordingly, the plaintiff prayed for multiple reliefs, namely, (i) Declare the Sale Deed between defendant No.2 and defendant No.1 as being fraudulent as 1,432 square meters of land was that of the plaintiff. (ii) Direct the defendant No.1 to hand over possession of 1,432 square meters by treating the two erstwhile land owners by deduction of 2,864 square meters from the entire parcel of land. (iii) Declare that the plaintiff is the owner of the 1,432 square meters, as the original holding was of 7,016 square meters and thereafter the deduction was only to the extent of 1,432 square meters and not the whole of 2,864 square meters from the plaintiff. (iv) That the defendant No.2 may not deal with, assign or transfer land admeasuring 1,432 square meters of land and a permanent injunction to that effect be given. 1.7 The defendants Nos. 1 and 2 respectively filed applications under Order VII Rule 11 at Exhs.9 and 20 respectively. In their application filed under the provisions of Order VII Rule 11, it was the case of the defendant: (a) That the plaint was filed suppressing certain material facts and documents. 1.7 The defendants Nos. 1 and 2 respectively filed applications under Order VII Rule 11 at Exhs.9 and 20 respectively. In their application filed under the provisions of Order VII Rule 11, it was the case of the defendant: (a) That the plaint was filed suppressing certain material facts and documents. (b) That the total area was 14,032 square meters of which 7,016 square meters was of Jetha Vala and Kachra Mula respectively. The 7,016 square meters which came to the share of Kachrabhai was sold by his heirs to Pravin Desai by a registered Sale Deed dated 30.08.2003. Pravinbhai, in turn, sold it to Champaben by a registered Sale Deed dated 08.11.2005. Champaben, in turn, by a registered Sale Deed sold it on 01.10.2006 to Ghanshyambhai Dahyabhai. Ghanshyambhai, in turn, by a registered Sale Deed sold it to Narendrabhai Patel, defendant No.2. The defendant No.2 then by a registered Sale Deed of 02.07.2019, sold it to the defendant No.1. That was the northern portion of the land admeasuring 7,016 square meters being half share of the total of 14,032 square meters between Jetha Vala and Kachra Mula. Kachra’s heirs getting 7,016 square meters without deduction of holding. (c) That it was from Jetha’s share of 7,016 square meters the entire southern portion of 2,864 square meters of land was acquired for land acquisition. The sale deeds entered into by Shankarbhai’s heirs with the petitioner in the year 1995 showed that the deduction was 2,864 square meters. The actual possession and ownership of the plaintiff, even as per the sale deed pursuant to which he came into possession was 4,152 square meters and not 5,543 square meters (by adding 1,432 square meters as half of land acquired as the entire 2,864 square meters was acquired from Jetha’s share, reducing the holding to 7016-2864 = 4,152sq.mtrs). Therefore, to plead that he was in possession and ownership of the 1,432 square meters was misleading as, he himself only purchased 4,152 square meters and not 5,542 square meters by claiming only a half deduction of 1,432 square meters. (d) In fact, even in his sale deed to Shetalbhai of 06.05.2014, the total area sold was 4,152 square meters showing the entire deduction of 2,864 meters. Therefore, right from 2014 he had no right of possession or ownership over 1,432 square meters of land. (d) In fact, even in his sale deed to Shetalbhai of 06.05.2014, the total area sold was 4,152 square meters showing the entire deduction of 2,864 meters. Therefore, right from 2014 he had no right of possession or ownership over 1,432 square meters of land. In fact, even the part of land of Kachra Mula which sales originated from 30.08.2003 of the entire share of 7,016 square meters would have to be challenged. The suit was, therefore, hopelessly time barred. The Trial Court heard the applications Order VII Rule 11 of both the defendants together with Exh.5 application and by the impugned order dismissed the suit as being time barred. Hence, this appeal. 2. Mr.Mehul Shah, learned Senior Advocate appearing with Mr.Jenil Shah, learned advocate for the appellant would make the following submissions: 2.1 He would submit that on reading the order under challenge, it is clear that the learned Trial Judge has proceeded to decide the applications under Order VII Rule 11 with application Exh.5. Therefore, contrary to the legal position he has looked into the case of both the sides and not decided the applications under Order VII Rule 11 by simply looking at the plaint. Inviting our attention to various portions of the order, he would submit that it is apparent from reading of the order that the Court below has taken documentary evidence adduced by the defendants, that the Court below has also examined the written statement and the objections to the application Exh.5. Mr.Shah, learned Senior Advocate, would submit that it is apparent from reading paragraph 24 of the order that while deciding application under Order VII Rule 11 he has discussed all the facts relating to the written statement and the application Exh.5 and the objections of the defendant. He would further read the order and submit that except for a one line reason that the suit has not been filed within the prescribed period of limitation, the Court below has not assigned any reasons while entertaining the applications under Order VII Rule 11. He would submit that he has also observed that the plaintiff has not put any documentary evidence to show that the plaintiff was in possession of the land. He would submit that he has also observed that the plaintiff has not put any documentary evidence to show that the plaintiff was in possession of the land. All these circumstances would therefore indicate that the learned Court below has completely disregarded the provisions of law and decided the application by looking to the objections and the evidence and therefore, the order requires to be set aside and the matter requires to be remanded for a re-decision. 2.2 Mr.Shah, learned Senior Advocate, would take us through the plaint, especially the prayers in the suit and indicate that the suit was not only for one relief but multiple reliefs such as for a declaration and injunction, to set aside the sale deed of the defendants No.1 and 2, and for partition of the properties in question. Reiterating the facts as set out in the plaint, Mr.Shah, learned Senior Counsel, would submit that there was an equal share of land between the two co-owners of 7016 square meters. After 2,864 square meters having acquired for the purposes of land acquisition from both the lands, the balance that remained was 11168 square meters and therefore, each co-owner had an area of 5,584 square meters. Mr.Shah, learned Senior Counsel, would submit that the plaintiff purchased land from Jetha which he had sold in the year 1985 to Shankarbhai. Shankarbhai, in turn sold the land to the plaintiff on 04.08.1995. The sale proceedings were a subject matter of Fragmentation Act and the plaintiff having failed in the SSRD, the Special C.A was allowed. There was an error in recording the restored revenue entry in favour of the plaintiff, inasmuch as, it recorded the land area of 4,152 square meters taking into aspect the entire deduction of land whereas the other half of 1,432 square meters of deduction was even attributable to the co-sharer Kachra Mula. It was the case of the plaintiff that he was in possession of the entire 5584 square meters. The disputed land for which the suit was therefore filed was for 1432 square meters. Mr.Shah, learned Senior Counsel, would submit that the other coowner Kachra Mula could not have sold more than 5584 square meters, whereas he sold 7016 square meters, which was a part of the plaintiff’s share, and therefore, the alternative relief of partition and handing over possession of 1432 square meters. 2.3 Mr. Mr.Shah, learned Senior Counsel, would submit that the other coowner Kachra Mula could not have sold more than 5584 square meters, whereas he sold 7016 square meters, which was a part of the plaintiff’s share, and therefore, the alternative relief of partition and handing over possession of 1432 square meters. 2.3 Mr. Shah, learned Senior Counsel, would submit that for all these discrepancies of land measurements, the documents produced by the plaintiff together with the plaint and Mark were documents which required leading of evidence and interpretation and therefore, the plaintiff could not have been ousted under the provisions of Order VII Rule 11. Inviting our attention to the paper book, Mr.Shah, learned Senior Counsel, would invite our attention to Mark 3/6 and submit that the initial Revenue Entry 173 indicated that there was division of land between Jetha Vala and Kachra Mula. Thereafter, by Revenue Entry No. 976, entry with regard to the gharkhed land was made. Mr.Shah, learned Senior Counsel, would then invite our attention to Mark 3/7 where Entry No. 1647 was recorded with regard to the acquisition of then area of 2846 square meters from the total land being Survey No. 117 and therefore the total portion of the land co-owned was reduced to 11168 square meters. 2.4 Mr.Shah, learned Senior Counsel, inviting our attention to the document at Mark 3/9, particularly the Revenue Entry 503 which indicated that the plaintiff acquired the ownership of the land by virtue of a Sale Deed dated 26.09.1995 from the heirs of Shankarbhai. The revenue entry would indicate that he had come into possession of half the share of the land at Survey No.117 which therefore indicated that what actually was the possession of the plaintiff was an area of 5584 square meters after deduction of 1432 square meters and not 4152 square meters. Mr.Shah, learned Senior Counsel, would then invite our attention to document at Mark 3/12 to indicate that when the revenue entry was restored pursuant to the orders of the High Court, it was expressed as an entry under Survey No. 120. Mr.Shah, learned Senior Counsel, would then invite our attention to document at Mark 3/12 to indicate that when the revenue entry was restored pursuant to the orders of the High Court, it was expressed as an entry under Survey No. 120. What happened was that instead of revival of the entry by showing one half as 7016 square meters, what was shown was 5584 square meters and even the Light Bill at Mark 3/14 would indicate that the land in possession apart from 4152 square meters was the additional land of 1432 square meters which according to the plaintiff, was a share of the land which was available to the plaintiff, as he being half of the deductee of the land pursuant to the land acquisition proceedings. He would also invite our attention to Mark 3/15, Form ‘F’, which would indicate that there was no bifurcation of land and the entire land was held jointly. 2.5 Mr.Shah, learned Senior Counsel, would then invite our attention to the paper book filed by the defendants – respondents and take us through the sale deed and the covenants. Mr.Shah, learned Senior Counsel, would submit that the covenants in the sale deed entered into between the predecessors and that of the subsequent sale deed of the year 2019 between the plaintiff on the one hand and the previous owner and the subsequent purchaser Shetalbhai Patel would indicate that the total area of land of which partition was made was 1403 square meters, and therefore, half of the area would come to 7016 square meters. The covenants in the sale deed indicated that of the total area of land, what was divided was half share taking into consideration half of the deduction of land acquisition and the covenants in the sale deeds of 2019 would require construction and this constructive interpretations of the document of sale between the plaintiff and the subsequent purchaser and thereafter of the sale between the defendant No.1 and 2 were in the realm of construction which would require a trial. 2.6 Mr.Shah, learned Senior Counsel, would submit that the sale deed at page 70 of the paper book of the year 2019 by which the sale was entered into between the plaintiff and one Shri Shetalbhai which are documents produced by them, cannot be treated as an admission of deduction of the entire area and it cannot be treated as an admission of deduction from the land of the plaintiff and the entire document needs to be read for the purposes of interpretation. He would invite the Court’s attention to the various covenants of the sale deed which would require a full fledged trial for the interpretation of the documents. Mr.Shah, learned Senior Counsel, would submit that certain documents, especially the document of sale at page 88 of the paper book, particularly clauses 20, 9 and 30, by which the sale of land occurred to the subsequent purchaser indicated that the sale was for the entire half the portion only after deduction of 1432 square meters and therefore even otherwise if these interpretations which were relied upon against the plaintiff, it was a defense of the parties and could not be taken to be an exercise for the purposes of deciding Order VII Rule 11. 2.7 Mr.Shah, learned Senior Counsel, would further submit that the Trial Court failed to interpret the distinction between a plaint which discloses a cause of action and the plaintiff which has no cause of action. The plaint has to be read and the suit under Order VII Rule 11 has to be dismissed only if the plaint does not disclose a cause of action and the Trial Court cannot assess the evidence as if the plaintiff has no cause of action. In light of the various reliefs prayed in the plaint i.e. with regard to tile, partition and possession, the plaint could not have been rejected as if rejected in the part and even the limitation was a mixed question of law and fact, and therefore, the order passed by the Trial Court was erroneous. 2.8 In support of his submissions, Mr.Shah, learned Senior Counsel, would rely on the following decisions: (i) In the case of Inox India Private Limited Vs. Cryogas Equipment Private Limited., reported in 2024 (2) GLH 419. 2.8 In support of his submissions, Mr.Shah, learned Senior Counsel, would rely on the following decisions: (i) In the case of Inox India Private Limited Vs. Cryogas Equipment Private Limited., reported in 2024 (2) GLH 419. This decision was relied upon by Mr.Shah, learned Senior Counsel, to submit that while deciding an application under Order VII Rule 11, the applications under Exh.5 could not be decided together and relying on paragraphs 19 and 21 he would submit that both the applications though being heard simultaneously there have to be separate orders. (ii) In the case of State of Orissa Vs. Klockner And Company & Ors., reported in (1996) 8 SCC 377 . Paras 25 and 26 of the judgement were read before us to submit that the Trial Court has failed to maintain the distinction between a plea that there was no cause of action for the suit and the plea that the plaint does not disclose a cause of action. He would rely upon the findings arrived at and which were quoted by the Supreme Court (extract of the reasons of the High Court). He would submit in the present case also the Trial Judge failed to maintain a distinction between the plea that there was no cause of action and the plea that the plaint does not disclose the cause of action, the latter being the only consideration for deciding the application under Order VII Rule 11. (iii) In the case of Sri Biswanath Banik & Anr Vs. Sulanga Bose & Ors., reported in (2022) 7 SCC 731 . Paras 7,10 and 11 were relied upon to submit that a plaint cannot be rejected in part. (iv) In the case of Mayar (H.K) Ltd & Ors Vs. Owners & Parties, Vessel M.V.Fortune Express & Ors., reported in (2006) 3 SCC 100 . Paragraph 12 of the decision was pressed into service to support his submission that while deciding an application under Order VII Rule 11, as long as the plaint discloses some cause of action which requires determination by the Court, the mere fact that in the opinion of the judge the plaintiff may not succeed cannot be a ground for rejection of the plaint in the present case. (v) In the case of Daya Singh & Anr Vs. Gurudev Singh., reported in (2010) 2 SCC 194 . (v) In the case of Daya Singh & Anr Vs. Gurudev Singh., reported in (2010) 2 SCC 194 . For the purposes of the question of limitation, relying on paragraphs 14, 15 and 18 of the decision, Mr.Shah, learned Senior Counsel, would submit that there is always a running cause of action for seeking partition by one of the co-sharer and therefore, even in suits of partition, a plea of limitation cannot be taken. It is only when there is a clear threat of dispossession as was in the present case that the suit was filed, and therefore, only on the ground of limitation it could not have been rejected. (vi) In the case of Vidya Devi Alias Vidya Vati (Dead) By LRS., Vs. Prem Prakash & Ors., reported in (1995) 4 SCC 496 . Mr.Shah, learned Senior Counsel, relied upon para-20. (vii) In the case of Govindammal Vs. R.Perumal Chettiar & Ors., reported in (2006) 11 SCC 600 . Mr.Shah, learned Senior Counsel, relied on para 11 of the decision to submit that there must be a hostile action of taking over possession and therefore, in a claim for partition when it is the case of the plaintiff that the possession was being taken over, the cause of action arose to file a suit on the ground of limitation therefore, the suit could not have been dismissed. (viii) In the case of Chhotanben & Anr Vs. Kiritbhai Jalkrushnabhai Thakkar & Ors., reported in (2018) 6 SCC 422 . By reading paragraphs 14, 15 and 19 of the decision, Mr.Shah, learned Senior Counsel, would submit that the question of limitation also is a triable issue for which, the plaint cannot be rejected at threshold. (ix) In the case of Soumitra Kumar Sen Vs. Shyamal Kumar Sen & Ors., reported in (2018) 5 SCC 644 . Paras 9 and 10 were relied upon to submit that even if the Trial Court comes to a conclusion that there is a suppression of fact on the ground that what was stated in the written statement are correct, one has to look at the plaint only for the purpose of deciding the application under Order VII Rule 11. Paras 9 and 10 were relied upon to submit that even if the Trial Court comes to a conclusion that there is a suppression of fact on the ground that what was stated in the written statement are correct, one has to look at the plaint only for the purpose of deciding the application under Order VII Rule 11. Even if the plaintiff is guilty of suppression and concealment, if they are ultimately found to be wrong or even correct, a defense of suppression projected in the written statement cannot be a ground for the rejection of the suit under Order VII Rule 11. 2.9 Relying on the decision in the case of Dahiben Vs. Arvindbhai Kalyanji Bhanusali (Gajra) & Ors., reported in (2020) 7 SCC 366 , paragraphs 23, 24,and 26 of the judgement were read to submit that the remedy under Order VII Rule 11 is an independent remedy where a Court is empowered to summarily dismiss the suit at the threshold. Under the provisions of Order VII Rule 11, documents filed along with the plaint can be taken into consideration. However, the term ‘Cause of Action’ is defined as “a cause means every fact which would be necessary for the plaintiff to prove”. Being a bundle of facts, it is necessary that the evidence has to be led and therefore the approach of the Trial Court in ousting the plaintiff by way of an application under Order VII Rule 11 is unjust. 3. Mr.Mihir Joshi, learned Senior Advocate appearing with Mr.Rohan Shah, learned advocate for the defendant No.1, would make the following submissions: 3.1 That the suit filed by the plaintiff – appellant was a suit which was an exhibit of a vexatious proceeding and a proceeding which amounted to the abuse of process. Mr.Joshi, learned Senior Counsel, would submit that here is a case where the plaintiff wanted a sale deed between two strangers to be rectified, inasmuch as, he wanted that an area of 1432 square meters be deducted on the basis of a claim that he was the owner of half the share i.e. 7016 square meters of the total area of original holding of 14032 square meters and while doing so, the plaintiff did not produce his sale deed dated 04.08.1995. 3.2 Mr.Joshi, learned Senior Counsel, would submit that the plaintiff created a story of ignoring the recitals in the documents. 3.2 Mr.Joshi, learned Senior Counsel, would submit that the plaintiff created a story of ignoring the recitals in the documents. Not only did he did not produce the Sale Deed of 04.08.1995 by which the land was sold to him, but also the subsequent Sale Deed dated 06.05.2014 by which he sold the land to the subsequent purchaser. Under the provisions of Order VII Rule 11, Mr.Joshi, learned Senior Counsel, would submit that the plaint must disclose a cause of action and the documents if they are seen as a whole, by suppressing these two vital Sale Deeds of 04.08.1995 and 06.05.2014, the plaintiff was guilty of suppression. Mr.Joshi, learned Senior Counsel, would submit that the Courts have found on suppression of facts and creating a cause of action. A meaningful reading of the documents would indicate that in fact, the entire deduction was from the southern side of the land belonging to the plaintiff and the land acquired for the road was from the ownership and possession of the plaintiff. 3.3 Mr.Joshi, learned Senior Counsel, would invite our attention to the Sale Deed dated 04.08.1995, a sale deed which was entered into by the heirs of Shankarbhai i.e. Sharmishthaben, by which the plaintiff was the purchaser of the land in question. He would take us through the description of the property to indicate that the covenant in the document indicate that the area was 7016 square meters except the road which was the portion of land deducted. From their own sale deed by which the plaintiff was the owner of the land would indicate that what was purchased was the land in the southern portion. The description of the properties in the periphery would indicate that the northern portion of the land belonged to the defendants. The land of the plaintiff was the southern side where the entire deduction of the area in question had occurred. 3.4 Mr.Joshi, learned Senior Counsel, would then invite our attention on the mutation entry which document has been produced by the plaintiff to indicate that it was therefore that the mutation entry was cancelled. Inviting our attention to Mark 3/2 of the documents produced together with the plaint, Mr.Joshi, would submit that it was very clear from the entry that the total land which remained after deduction of 2482 square meters for the purposes of the road was 11168 square meters. Inviting our attention to Mark 3/2 of the documents produced together with the plaint, Mr.Joshi, would submit that it was very clear from the entry that the total land which remained after deduction of 2482 square meters for the purposes of the road was 11168 square meters. What was shown in the revenue entry dated 15.03.2014 was that the ownership of the plaintiff was only 4152 square meters and not 5582 square meters as professed by the plaintiff and Narendrabhai Maganbhai Patel. The defendant No.2, had in its ownership the entire 7016 square meters indicating that the claim of the plaintiff that the balance 1432 square meters which was deducted from the plaintiff’s claim of possession was misconceived. The construction of the document clearly indicated that the entire 2842 square meters was deducted from the southern side of the plaintiff’s land which was even within his knowledge on the sale deed that he executed by virtue of which he became the owner of the property. 3.5 Mr.Joshi, learned Senior Counsel, would then also invite our attention to the covenants in the documents to submit especially the sale deed dated 06.05.2014 entered into by and between the plaintiff with the subsequent seller Shetalbhai D. Patel which indicated that the total area of land was bifurcated and the ownership share that came to the plaintiff was the deduction showing 2864 square meters and therefore, the absolute admission that the plaintiff had by virtue of the sale deed in favour of the subsequent purchaser that he only possessed 4152 square meters. This sale deed, was not produced by the plaintiff which would have gone a long way to suggest that the suit of the plaintiff for an additional claim of 1432 square meters was completely wrong. By not producing this document, it was clearly shown that the possession of the plaintiff which was left after the deduction for the purposes of the road was only 4152 square meters. By not producing this document, it was clearly shown that the possession of the plaintiff which was left after the deduction for the purposes of the road was only 4152 square meters. 3.6 Mr.Joshi, learned Senior Counsel, would invite our attention to the recitals in the sale deed to the prior purchase made by the plaintiff which also refer to the sale deed of 04.08.1995 which reiterated the fact that the glaring record would indicate the false claim of the plaintiff in showing that he was in possession of 5584 square meters whereas in fact, from the documents of sale dated 04.08.1995 and 06.05.2014 it was evident from the claim of the very documents which were executed by the plaintiff and which clearly showed that when he sold the land and when he purchased the land from his predecessor, the holding in his favour was only 4152 square meters. Whereas recitals in the Sale Deed dated 06.05.2014 indicated that the possession in fact was of 4152 square meters and the claim for possession of 1432 square meters in the plaint without producing these documents were a clear suppression and on this ground alone the plaintiff had to be non suited. 3.7 Mr.Joshi, learned Senior Counsel, would submit that as far as the purchase of the defendants is concerned, they had clearly purchased the entire share of 7016 square meters minus the only deduction of 1432 square meters and the suit therefore for claiming possession of 1432 square meters was unjustified. Mr. Joshi, learned Senior Counsel, would rely on a decision in the case of Dahiben (supra). He would rely on paragraph 23.8, 24, 26 and 27 to submit that when a document referred to in the plaint forms the basis of the plaint it should be treated as part of the plaint. In the facts of the case, though a reference was made to the Sale Deeds of 04.08.1995 and 06.05.2014, by not producing the same which was the basis of the plaint, not only was the plaintiff guilty of suppression but these documents on the very face of it stated that it was an admission on the part of the plaintiff that he was in possession of only 4152 square meters and therefore the claim in the plaint for possession of 1432 additional square meters of land was misconceived. Referring to para 27 of the decision where the decision of the Hon’ble Supreme Court in the case of Khatri Hotels (P) Ltd Vs. Union of India reported in (2011) 9 SCC 126 , was referred to, he would submit that the use of the word “first” between the words “sue and accrued” would mean the time when the first right to sue accrued and if that accrued in the year 1995 and 2014, the suit was hopelessly barred. 3.8 Relying on para 7 of the decision in the case of Rameshchandra Chimanlal Shah Vs. Maheshbhai Manubhai Patel, rendered in First Appeal No. 1329 of 2019, dated 10.04.2019, Mr.Joshi would submit that it is a well settled proposition of law that in a case where clandestine clever drafting of the plaint would indicate misreading of statements by suppressing basic facts, an application under Order VII Rule 11 would justify a dismissal of the suit. Reliance was also placed on a decision in the case of Jaman Shamji Fadadu Vs. Sadik Mahmad Sidik & Ors., rendered in Civil Revision Application NO. 345 of 2018. He would rely on paragraphs 40 and 41 which indicates that on the ground of suppression of facts, a plaint can be rejected under the provisions of Order VII Rule 11. He would therefore submit that no error can be found in dismissing the suit in exercise of powers under Order VII Rule 11 of the Code of Civil Procedure. 4. Having considered the submissions made by the learned counsels for the respective parties, we need to examine the plaint as it is. The basic claim of the plaintiff for the benefit of being in possession of 1432 square meters of land is on the ground that the entire 2864 square meters of land which was acquired for the purposes of the road was a deduction made in equal shares of 1432 square meters from co-owners Jetha Vala and Kachra Mula. In other words, the case of the plaintiff is that the total holding of the land of the co-owners was 14032 square meters, half the share of such holding would therefore be 7016 square meters and by deducting 1432 square meters from each half of the co-owner, the total deduction being 2864 square meters, each co-owner would have in his share 5584 square meters of land. It is based on this assertion that the plaintiff filed the suit for possession, partition and a declaration that the sale deed between the defendants 1 and 2 of the excess land being 1432 square meters be held bad. The assessment of facts would indicate that initially there was a total land of 14032 square meters of which, 2864 square meters was deducted. If that was the case, each of the co-owners according to the plaintiff had an equal share of 5584 square meters on the assumption that the deduction was from both portions of the land and therefore both the coowners would face equal deduction. 4.1 The plaintiff based his claim on the Marks 3/1 to 3/12 which was produced with the plaint in the suit. It is in these circumstances that the document produced at Mark 3/2 which is Form No.7 dated 15.03.2014 produced by the plaintiff which needs to be considered. It shows that the total area of land after the deduction of 2864 square meters was 11168 square meters. Of that, the plaintiff owned 4152 square meters, whereas the defendant No.2 owned 7016 square meters of land. This document therefore, produced by the plaintiff itself leads to the conclusion that the claim of the plaintiff in the plaint that the deduction of 2864 square meters half of which 1432 is the figure was from each of the share holding is misconceived. 4.2 In order to ascertain whether in fact the plaintiff was actually in possession of 4152 square meters and the defendant No.2 of 7016 square meters is an assessment which needed to be done on the basis of the averments in the plaint. The averments in the plaint which are part of the first appeals paper book would indicate that the plaintiff has ascertained that he came into possession of the land in question by virtue of a sale deed entered into by the heirs of Shankarbhai Babubhai Patel by a Sale Deed dated 04.08.1995. In other words, the original title which vested from the lineage of Jetha Vala came into succession by virtue of the sale deed to the plaintiff through a sale deed entered into by the subsequent purchaser, the heirs of Shankar Babu in favour of the plaintiff. The Sale Deed dated 04.08.1995 is not produced by the plaintiff. In other words, the original title which vested from the lineage of Jetha Vala came into succession by virtue of the sale deed to the plaintiff through a sale deed entered into by the subsequent purchaser, the heirs of Shankar Babu in favour of the plaintiff. The Sale Deed dated 04.08.1995 is not produced by the plaintiff. That document which is produced by the defendant would indicate that the area of land shown in the sale deed was 7016 – 2846 square meters of land deducted for the purposes of acquisition of the road. 4.3 Admittedly therefore, the entire deduction of 2846 square meters of land was from the land holding of the plaintiff and contrary to his assertions in the plaint the other half of the deduction was not from the common pool of the land. The land which the plaintiff owned was on the southern side whereas the land which the defendants 1 and 2 purchased from the lineage of Kachra Mula fall on the northern side is evident from the peripheral areas and description of properties shown in the sale deed. This therefore, is in conformity with the revenue entry dated 15.03.2014. 4.4 Coming to the Sale Deed dated 06.05.2014 which was entered into by the plaintiff to sell the land to the subsequent purchasers Shetalbhai D. Patel and the covenants therein would indicate a positive assertion of the plaintiff by selling the land in question that he was the owner of only 4152 square meters. In other words, the assertion in the plaint that he would own the additional land of 1432 square meters making his total holding as 5584 square meters was completely a incorrect assertion made in the plaint, contrary to his own document i.e. the sale deed that he entered into with the subsequent purchaser where it was his clear admission that he only owned 4152 square meters. That is also evident from the subsequent recitals in the sale deed which would go back to the sale deed by which he purchased the land i.e. the sale deed dated 04.08.1995. That is also evident from the subsequent recitals in the sale deed which would go back to the sale deed by which he purchased the land i.e. the sale deed dated 04.08.1995. When this is seen in light of the document at Mark 3/2, it is clearly a case where on the basis of his own documents i.e. the Sale Deed of 04.08.1995 and 06.05.1995 the assertion in the plaint that he owned the excess 1432 square meters in addition to 4152 was blatantly proved wrong. 4.5 Now, coming to whether the defendant actually owned 7016 square meters and therefore the deduction claim of 1432 square meters from his ownership was also a fictitious claim was set out in the application filed by the defendant under Order VII Rule 11. Reading of the application Order VII Rule 11 would also indicate that in the entire sale transactions which had occurred between the defendants Nos. 1 and 2 from the branch of Kachra Vala would indicate that the defendants in line who were subsequent purchasers of the entire 7016 square meters. From the application at Exh.5, what is indicated is that of the total area of 14032 square meters, and after acquisition of the 2864 square meters for the road the total holding that remained with the joint owner Jetha and Kachra was 1168 square meters. 4.6 A town planning scheme was framed at Plot No.53 admeasuring 7257 square meters. The defendant No.2 had purchased the land from the defendant No.1 by a registered Sale Deed dated 02.07.2019. What is evident from the history of the land which the defendants have come into possession was that the northern side of the land which was owned by Kachrabhai Mulabhai was sold to the heirs of the deceased Pravinbhai Sakhabhai Desai on 30.08.2003. Thereafter, Pravinbhai Sakhabhai and his heirs sold the land to Champaben Virambhai Desai and a revenue entry was mutated on 11.11.2005. Champaben in turn sold the land to Ghanshyambhai Dahyabhai Patel by a registered Sale Deed of 01.10.2006. Ghanshyambhai then sold the land to the defendant No.2 by a registered Sale Deed of 01.04.2008. The defendant No.2 therefore purchased the land admeasuring 4560 square meters. Narendrabhai then entered into a sale deed with the defendant No.1 on 02.07.2019 by which the defendant No.1 became the owner. Ghanshyambhai then sold the land to the defendant No.2 by a registered Sale Deed of 01.04.2008. The defendant No.2 therefore purchased the land admeasuring 4560 square meters. Narendrabhai then entered into a sale deed with the defendant No.1 on 02.07.2019 by which the defendant No.1 became the owner. The revenue entry i.e. of 15.03.2014, when read in context of these facts and the sale deeds which were in possession of the plaintiff i.e. 04.08.1995 and 06.05.2014 which exhibited the plaintiff’s own holdings and the measurement and the directions which the plaintiff had not produced would definitely be a case of suppression of facts. 4.7 The case of Dahiben (supra), therefore would trigger us to hold that a plaint which does not disclose a cause of action particularly a document which is referred to the plaint and it forms the basis of the plaint has to be treated as a part of the plaint. These documents did not form part of the record, which otherwise would have formed the basis of the plaint which clearly showed that in fact the positive assertion of the plaintiff that he owned 5584 square meters and not 4152 square meters and therefore his claim to the additional 1432 square meters was clearly a case contrary to the documents on record which were in his possession and of which he was an executor. This was a clear suppression of facts which lead us to hold that the Trial Court in our opinion rightly exercised the discretion in dismissing the suit under Order VII Rule 11. 4.8 It will be in the fitness of things to reproduce paragraph 7 of the decision in the case of Rameshchandra Chimanlal (supra) and paragraphs 40, 41 in the case of Jhaman Shamji (supra), which would indicate that it is open for the Trial Court to dismiss the suit in exercise of powers under Order VII Rule 11 when there is a material suppression of facts. Relevant paragraph 7 in the case of Rameshchandra (supra) reads as under: “7. In view of the above factual position, this Court is required to consider as to whether the averments in the plaint justify the exercise of powers under Order 7 Rule 11(d) of CPC. Relevant paragraph 7 in the case of Rameshchandra (supra) reads as under: “7. In view of the above factual position, this Court is required to consider as to whether the averments in the plaint justify the exercise of powers under Order 7 Rule 11(d) of CPC. The proposition of law that the plaint which would include the document annexed therewith would be the only material to be considered for exercise of powers under the said provisions is well settled. However, in a case where clandestinely the real purport of plaint is maneuvered by clever drafting; by misleading statements, and by suppressing the basic facts, can the plaintiff contend that the averments in the plaint do not justify the exercise of powers under Order 7 Rule 11. The rule that the averments in the plaint and the related documents would be the material for consideration under Order 7 Rule 11 would not justify the plaintiff to choose the averments suiting his case. The aforesaid rule would only mean that the averments made and which ought to be made and the documents produced and which ought to be produced in justification of the prayer in the suit would be the material for the above purpose. In other words, a deliberate avoidance of the necessary averments in the plaint and related documents in order to clandestinely alter the true purport of the plaint, would not justify the plaintiff to contend that the powers under Order 7 Rule 11(d) were not exercisable, if after consideration of avoided necessary material, the case under said provision would be made out. Therefore, even in cases where the necessary averments are deliberately avoided or misleading statements are made or false suggestions are made, the aforementioned rule for the decision in the applications under Order 7 Rule 11 of the CPC would be attracted and it would permissible to trace out the missing statements; false suggestions and avoided statement for the purpose and said provision.” Relevant paragraphs 40 & 41 of Jhaman Shamji (supra) read as under: “40. The judgment in the case of Chotanben & Others v. Kiritbhai Jalkrushnabhai Thakkar (supra), would not be applicable to the facts of the present case inasmuch as, there was a specific assertion that the appellants therein and the defendants were in joint ownership and possession of the ancestral property inherited by them from their predecessor. The judgment in the case of Chotanben & Others v. Kiritbhai Jalkrushnabhai Thakkar (supra), would not be applicable to the facts of the present case inasmuch as, there was a specific assertion that the appellants therein and the defendants were in joint ownership and possession of the ancestral property inherited by them from their predecessor. So is not the case over here. In paragraph 19, the Apex Court, has categorically held and observed that there was a specific assertion in the suit that the same has been filed immediately after getting the knowledge about the fraudulent sale deed executed by the defendants therein by keeping them in dark about such execution and within two days from the refusal by the original defendants to refrain from obstructing the peaceful enjoyment of use and possession of the ancestral property. Here, as has been rightly pointed out by Mr Sanjanwala, learned senior counsel appearing for the applicant-petitioner that in whole of the plaint there is not a whisper that neither father nor the grandfather or the plaintiff- respondent were not aware about the Will and the mortgage deed and therefore, the knowledge was very much there. Considering the facts and circumstances of the case on hand, the judgments cited by the learned advocate appearing for the plaintiff-respondent cannot be applied. 41. Besides, there is one more ground raised of suppression which, also leans in favour of the petitioner. In view of the discussion in the preceding paragraph, the suit is nothing but utterly vexatious and abuse of process of Court. Pertinent would be the common oral judgment dated 24.2.2020 passed in Civil Revision Application no.147 of 2016, in the case of Himanshubhai Pannalal Kothari v. Legal Heirs of Decd. Hasubhai Kalubhai Shaikh & Others, wherein this Court has referred to the judgment dated 26.12.2019 passed in Civil Revision Application no.343 of 2019 in the case of Rajhansh Infracon India (Pvt) Ltd. v. Santosh Rameshbhai Rathod. It is held and observed that the plaintiff must make all the averments to his knowledge and information in the plaint and cannot claim a premium for deliberate omission of certain relevant facts. The suppressed facts, if brought to the notice of the court, can always be taken into account for the purpose of Order VII Rule 11 of the C.P.C. Paragraph 4 of the common oral judgment dated 24.2.2020, is reproduced hereinbelow: “4. The suppressed facts, if brought to the notice of the court, can always be taken into account for the purpose of Order VII Rule 11 of the C.P.C. Paragraph 4 of the common oral judgment dated 24.2.2020, is reproduced hereinbelow: “4. It is settled legal position that the averments in the plaint and the document can only be the material to persuade the court to decide the application under Order 7 Rule 11 of CPC. At times however by resorting to clever drafting certain relevant facts would be omitted from the plaint so as to save the case from the clutches of Order 7 Rule 11 of CPC. This court thus explained the purpose, object and scope of Order 7 Rule 11 of CPC in Rajhansh Infracon India (Pvt) Ltd. vs. Santosh Rameshbhai Rathod (Civil Revision Application No. 343 of 2019 decided on 26.12.2019). It was inter alia pointed that the plaintiff must make all the averments to his knowledge and information in the plaint and cannot claim a premium for deliberate omission of certain relevant facts. The suppressed facts, if brought to the notice of the court, can always be taken into account for the purpose of Order 7 Rule 11 of C.P.C.” The Apex Court, in the case of Dahiben v. Arvindbhai Kalyanji Bhanusali (supra), in paragraph 13 has observed thus: “13……… The Court must be vigilant against any camouflage or suppression, and determine whether the litigation is utterly vexatious, and an abuse of the process of the court.” 4.9 We would agree with the submission made by the learned counsel for the respondent that here it was a case of vexatious litigation between the parties, especially when the foundation of claiming the additional 1432 square meters was itself a false story on the part of the plaintiff when his own documents indicated that he was in fact not in possession of the additional 1432 square meters which he claimed. A clear admission of the documents that he executed exhibited the hollowness of his plaint and the plaint with these documents which should have formed the basis were not produced on record. 5. We, therefore, find that there is no merit in the appeal. We, accordingly, hereby confirm the order dated 17.09.2022 passed by the Principal Senior Civil Judge, Gandhinagar, below Exhs. 9, 20 and 5 by which Special Civil Suit No. 30 of 2021 was dismissed. 5. We, therefore, find that there is no merit in the appeal. We, accordingly, hereby confirm the order dated 17.09.2022 passed by the Principal Senior Civil Judge, Gandhinagar, below Exhs. 9, 20 and 5 by which Special Civil Suit No. 30 of 2021 was dismissed. In view of disposal of the main appeal, civil application will not survive and stands disposed of, accordingly.