Gujarat High Court
Heirs Of Decd Navghanbhai And Revabhai ... vs Lh Of Decd Alibhai Mohmmadbhai Patel on 17 July, 2025
NEUTRAL CITATION
C/SA/117/2025 JUDGMENT DATED: 17/07/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SECOND APPEAL NO. 117 of 2025
With
CIVIL APPLICATION (FOR STAY) NO. 1 of 2025
In R/SECOND APPEAL NO. 117 of 2025
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE SANJEEV J.THAKER Sd/-
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Approved for Reporting Yes No
✔
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HEIRS OF DECD NAVGHANBHAI AND REVABHAI MALI & ORS.
Versus
LH OF DECD ALIBHAI MOHMMADBHAI PATEL & ORS.
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Appearance:
MR SP MAJMUDAR(3456) for the Appellant(s) No.
1,1.1,1.2,1.3,2,2.1,3,3.1,3.2,4,4.1,4.2,4.3
MR V Z BHARDA(12667) for the Appellant(s) No.
1,1.1,1.2,1.3,2,2.1,3,3.1,3.2,4,4.1,4.2,4.3
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CORAM:HONOURABLE MR.JUSTICE SANJEEV J.THAKER
Date : 17/07/2025
ORAL JUDGMENT
1. The present Second Appeal has been filed challenging the judgment and decree dated 16.12.2024 passed by the 6 th Additional District Judge, Vadodara in Regular Civil Appeal No.109 of 2018 confirming the judgment and decree passed by the trial Court in Regular Civil Suit No.273 of 2013 dated 19.01.2018 whereby the plaint of Civil Suit No.273 of 2013 has been rejected under the provisions of Order VII Rule 11 of the Code of Civil Procedure, 1908 ('CPC', for short).
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2. For the sake of convenience, the parties are referred to as their original status referred in the suit.
3.1 The brief facts arising in the present appeal are that the plaintiff had filed Regular Civil Suit No.273 of 2013, for cancellation of three sale-deeds. It is the case of the plaintiff that the first sale-deed was executed on 11.05.1971, second was executed on 16.02.1972 and third sale-deed was executed on 17.11.2009. The plaintiff had filed the suit on the ground that the suit property was jointly owned property of Virabhai Bhaiji who was the grandfather of the appellants herein i.e. original plaintiff.
3.2 It is the case of the plaintiff that as per the provisions of Section 6 of the Hindu Succession Act, the plaintiffs have a right in the suit property and that the plaintiff has undivided right in the suit property. It is the case of the plaintiff that the co-parceners could not have executed the sale-deed for an ancestral undivided property in favour of stranger and as the suit is filed within three years from the date of alienation, the suit could not be said to be barred by law. It is the case of the plaintiff that the trial Court and the appellate Court have committed substantial error of law by failing to appreciate that as per Article 110 of the Limitation Act, 1963, the period of limitation would be of 12 years and would start running from the date when exclusion came to knowledge of the plaintiff, which in the present case commenced from the date of execution of the sale-deed Page 2 of 15 Uploaded by MISHRA AMIT V.(HC00187) on Fri Jul 18 2025 Downloaded on : Sat Jul 19 00:15:03 IST 2025 NEUTRAL CITATION C/SA/117/2025 JUDGMENT DATED: 17/07/2025 undefined dated 17.11.2009 and for which legal notice was also issued by the plaintiff dated 18.02.2013 to defendant nos.2 and 3.
3.3 Learned advocate for the plaintiff has also argued that trial Court and the appellate Court committed substantial error of law by failing to appreciate the revenue Entry Nos.267 and 960 which were mutated in the Village Form No.6 whereby names of legal heirs of Vira Bhaiji were mutated and, therefore, it has been argued by learned advocate for the plaintiff that as per section 6 of the Hindu Succession Act, all heirs being co-parcener, were entitled to have joint right in the said undivided ancestral property. It has also been argued that the said sale is in absolute contradiction to Section 41 of Transfer of Properties Act, 1882 as the transfer was not executed by the persons having complete title of the subject matter as the present plaintiff were also co-parcener and were entitled to equal joint right in the said undivided ancestral property and, therefore, it has been argued that there are substantial questions of law involved in the present Second Appeal which are formulated in the memo of appeal and, therefore, present Second Appeal is required to be admitted on the substantial questions of law as suggested in memo of appeal, which reads as under:-
"(A) Whether both the Ld. Courts below have committed a substantial error of law by failing to appreciate that the suit filed by the Appellant / Plaintiffs could not have been rejected / dismissed only on the ground of limitation, unless the defendants proved that the subject property divested was not an ancestral property but a self-acquired Page 3 of 15 Uploaded by MISHRA AMIT V.(HC00187) on Fri Jul 18 2025 Downloaded on : Sat Jul 19 00:15:03 IST 2025 NEUTRAL CITATION C/SA/117/2025 JUDGMENT DATED: 17/07/2025 undefined property which required a substantial trial qua which evidence had to be led?
(B) Whether both the Ld. Courts below have committed a substantial error of law by failing to appreciate the fact that when the present Appellant / Plaintiffs professed ignorance or lack of knowledge with respect to the factum of the sale of an undivided property by one Co-owner in favour of a stranger about which , the present Appellant / Plaintiffs came to know when it was further sold in the year 2009 and qua which a legal notice was also issued dated 18/02/2013, Section 17 of the Limitation Act would come into play, for such issues being disputed questions of fact would demand a substantial trial for which evidence would have to be led by both the parties and therefore, the plaint could not have been rejected under Order 7 Rule 11?
(C) Whether both the Ld. Courts below have committed a substantial error of law by failing to appreciate the fact that a Co-parcener could not have executed a sale-deed in favour of a stranger for an ancestral undivided property and even if such a sale-deed was executed, the same would neither bind the other co-parcener nor extinguish their rights from the said property which they attained by birth ?
(D) Whether both the Ld. Courts below have failed to appreciate the said fact that in absence of there being any evidence to show that the alienation done by Navghanbhai Mali was done as the Karta of the family and was done for any legal necessity, the said alienation would be nothing but illegal, null and void to the extent of un-divided interests of other co-parceners as laid down in Rohit Chauhan vs Surinder Singh 2013(9) SCC 419 ?
(E) Whether both the Ld. Courts below had erred in coming down on the conclusion that the suit was explicitly barred by limitation which stood in absolute contradistinction to the settled proposition of law that a party who was not an Eo- nominie to a Sale-Deed need not pray specifically for its cancellation and it is always open for such a party to question Page 4 of 15 Uploaded by MISHRA AMIT V.(HC00187) on Fri Jul 18 2025 Downloaded on : Sat Jul 19 00:15:03 IST 2025 NEUTRAL CITATION C/SA/117/2025 JUDGMENT DATED: 17/07/2025 undefined its validity and binding nature and therefore, the question of such a suit being barred by limitation on the ground that it was not filed within 3 years from the date of alienation would never prima-facie arise as laid down by the Division Bench judgment in S. Ramacharian Ors vs Trishala Infrastructure Pvt. Ltd. & Ors. 2021 SCC OnLine TS 1809 ?
(F) Whether both the Ld. Courts below have committed a substantial error of law by failing to appreciate that as per Article 110 of the Limitation Act, 1963, the period of limitation would be 12 years and would start running from the date when the exclusion came to be known to the present Appellant / Plaintiffs ?
(G) Whether both the Ld. Courts below have failed to appreciate that as per the settled proposition of law laid down by the Hon'ble Apex Court in Geetha D/o Late Krishna & Ors vs Nanjundaswamy & Ors 2023 SCC OnLine SC 1407 the averments made in the plaint have to be assumed to be correct and therefore, a clear, legal and valid cause of action within the limitation period was revealed ? (H) Whether both the Ld. Courts below have committed a substantial error of law in failing to appreciate that taking into consideration the present set of facts and circumstances, the issue of limitation was a mixed question of fact and law qua which without proper pleadings, framing of an issue of limitation and taking of evidence, the present suit could not have been dismissed as barred by limitation as laid down by the Hon'ble Apex Court in Chhotanben and Anr. Vs Kiritbhai Jalkrushnabhai Thakkar and Ors (2018) 6 SCC 422 ?
(I) Whether both the Ld. Courts below have committed a substantial error of law by deviating from the settled proposition of law laid down by the Hon'ble Apex Court in G. Nagaraj vs B.P. Mruthunjayanna 2023 (0) AIJEL - SC 71024, that while deciding an application under Order 7 Rule Page 5 of 15 Uploaded by MISHRA AMIT V.(HC00187) on Fri Jul 18 2025 Downloaded on : Sat Jul 19 00:15:03 IST 2025 NEUTRAL CITATION C/SA/117/2025 JUDGMENT DATED: 17/07/2025 undefined 11 of CPC, neither defence of the defendants nor the documents adduced along with it could be looked into ? (J) Whether both the Ld. Courts below have committed a substantial error of law by failing to appreciate the Revenue Entries No.267 & 960 which were mutated in Village Form No.6 whereby the names of all the heirs of Veerabhai Bhayajibhai Mali were mutated and therefore, as per Section 6 of the Hindu Succession Act, 1956, all heirs being co- parceners were entitled to claim equal and joint rights in the said undivided ancestral property ?
(K) Whether both the courts below have committed a substantial error of law by failing to appreciate the "Nemo Dat QuodNon Habet" meaning "No One Gives What He Doesn't Have" which meant that no person could have transferred more rights or a better title than what one possessed and therefore, under such circumstances the Sale executed was in absolute contradistinction to Section 41 of the Transfer of Property Act, 1882 as the transfer was not executed by an ostensible owner having complete title of the subject property ?
(L) Whether the Ld. First Appellate Court had committed a serious error in not deciding an appeal in accordance with provisions enumerated under section 96 as well as under
Order 41 of the Code of Civil Procedure and in absence of substantial compliance of Order 41 Rule 31 the Ld. First Appellate Court had failed to discharge its obligation casted upon it as the First Appellate Court ?
4.1 Having heard learned advocate for the plaintiff, the fact remains that by a registered sale-deed dated 11.05.1971, Abdul Sattar Gulam Hakim and Navgan Vira, had sold the suit property to Patel Ali Mohmmad and possession of the suit property was also handed over to the owner and a revenue entry to that effect has been Page 6 of 15 Uploaded by MISHRA AMIT V.(HC00187) on Fri Jul 18 2025 Downloaded on : Sat Jul 19 00:15:03 IST 2025 NEUTRAL CITATION C/SA/117/2025 JUDGMENT DATED: 17/07/2025 undefined entered in the revenue record by Mutation Entry No.1295. Thereafter the suit property has been sold by Patel Ali Mohmmadbhai vide registered sale-deed No.800 dtd.16.2.72 to Mohanbhai Lallubhai and a revenue entry to that effect has been made by Revenue Entry No.1297. Thereafter the said owner of the property viz. Mohanbhai Lallubhai died on 13.12.1994 and the name of his legal heirs were entered into revenue record by entry no3171 on 20.01.2004 and the heirs of Mohan Lallubhai sold the suit property to defendant no.3 viz. Kantibhai Chaturbhai Patel vide registered sale-deed No.10964 dtd.17.11.2009 and in view of the said registered sale-deed, name of defendant no.3 was entered in revenue record by Entry No.3190.
4.2 In the plaint, the plaintiff has specifically stated that the suit property was sold on 11.05.1971 and the suit property thereafter was further sold on 16.02.1972 and that the names of legal heirs of Mohanbhai Lallubhai were entered in the revenue record after his death and that the suit property was sold by legal heirs of Mohanbhai Lallubhai on 17.11.2009. The reliefs that have been sought in the plaint are for a declaration that plaintiffs have undivided share in the suit property and the plaintiff have challenged the said sale-deeds and by way of filing civil suit, the plaintiff is challenging the registered sale-deed which had been executed in the year 1971. The plaintiffs, in the plaint, have stated that age of plaintiff no.1/1 is 40 years, age of plaintiff no.1/2 is 38 years, age of plaintiff no.1/3 is 28 years and age of plaintiff no.2/1 is 49 years, plaintiff no.3/1 is aged Page 7 of 15 Uploaded by MISHRA AMIT V.(HC00187) on Fri Jul 18 2025 Downloaded on : Sat Jul 19 00:15:03 IST 2025 NEUTRAL CITATION C/SA/117/2025 JUDGMENT DATED: 17/07/2025 undefined about 52 years, plaintiff no.3/2 is aged about 45 years, plaintiff no.4/1 is aged about 35 years, plaintiff no.4/2 is 32 years old and plaintiff no.4/3 is 30 years old and, therefore, it cannot be said that even if some of the plaintiffs were minor the suit has been filed within three years from the date of their attaining the age of majority. In the plaint, the plaintiff has also stated that the fraud has been committed when the sale-deed has been executed in the year 1971 and, therefore, it cannot be said that plaintiffs were very much aware of execution of sale-deed of the year 1971. If the plaint is perused, it is the case of the plaintiff that the plaintiff has right in the suit property and the seller of registered sale-deed no.1295 of the year 1971 could not have executed sale-deed in favour of Patel Ali Mohmmad. In the entire plaint, the plaintiff is not stating anything that he was not aware about execution of the sale-deed of the year 1971 so also about the execution of sale-deed in the year 2009 and the plaintiff has come forward with the case that it is only in the year 2013 when the notice was issued that the plaintiff has come to know about execution of the said sale deed.
4.3 It is not the case of the plaintiff that registered sale-deed executed on 11.05.1971, vide Mutation Entry No.1295, was not executed by Abdul Sattar Gulam Hakim and Navgan Vira nor it is the case of the plaintiff that Abdul Sattar Gulam Hakim and Navgan Vira have not received sale consideration with respect to the suit property. The suit is based on the aspect that as per provisions of Page 8 of 15 Uploaded by MISHRA AMIT V.(HC00187) on Fri Jul 18 2025 Downloaded on : Sat Jul 19 00:15:03 IST 2025 NEUTRAL CITATION C/SA/117/2025 JUDGMENT DATED: 17/07/2025 undefined Section 6 of the Hindu Succession Act, the plaintiffs are co-parcener of the ancestral property and the suit property could not have been sold by Abdul Sattar Gulam Hakim and Navgan Vira. In the plaint, the plaintiff has also not mentioned as to when the fraud has been committed on seller of registered sale-deed 2009 as no particulars of any fraud has been stated in the plaint. The law in that matter is very clear. Order VI Rule 4 of Code of Civil Procedure, 1908 reads as under:
"Order VI Rule-4. Particulars to be given where necessary.
--In all cases in which the party pleading relies on any misrepresentation, fraud, breach of trust, wilful default, or undue influence, and in all other cases in which particulars may be necessary beyond such as are exemplified in the forms aforesaid, particulars (with dates and items if necessary) shall be stated in the pleading."
4.4 Therefore, there has to be sufficient details of fraud as the plaintiff relies on misrepresentation fraud, breach of trust or undue influence, and therefore, particulars are to be given in the plaint supporting the case of the plaintiff.
4.5 The plaintiff has relied upon the judgment reported in 2013 (0) AIJEL - SC - 54414 in the case of Rohit Chauhan vs. Surinder Singh and the judgment reported in 2021 SC (Telangana) 257 in the case of S. Ramachari and others vs. M/s. Trishala Infrastructure Pvt. Ltd. And ors. and, therefore, it has been argued that the trial Court and the first Appellate Court could not have rejected the plaint.
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year 1971 and 1975) have not challenged the said sale-deed during their life-time. The said sale-deeds being registered are deemed knowledge of the transaction and by way of making vague allegations in the plaint that plaintiff has no knowledge of sale-deed, as plaintiff came to know about the suit transaction only after notice was issued in the year 2013 is nothing but a vague averment to try to bring the suit within the period of limitation and plaintiff cannot be permitted to bring the suit within period of limitation which otherwise barred by law as challenge to the registered sale deed of the year 1971 has been made after 41 years. Considering these aspects, it appears that trial Court and the appellate Court have rightly allowed the application Exh.33 and rejected the plaint exercising powers under Order VII Rule 11 (d) of the CPC.
5.2 In the present case, no specific date is mentioned as to date on which original plaintiff came to know about the execution of sale- deed and vague statement is made that plaintiff came to know about the fact only when notice was issued in the year 2013. The plaint is with respect to challenge of sale-deed of the year 1971 and suit is filed in the year 2013 and, therefore, it is required for the plaintiff to aver in the plaint that as to when he came to know about the execution of sale-deed and how suit is within the limitation. In the present case, plaintiffs are completely silent as to the said facts. The suit has been filed after expiration of period prescribed by law of Page 10 of 15 Uploaded by MISHRA AMIT V.(HC00187) on Fri Jul 18 2025 Downloaded on : Sat Jul 19 00:15:03 IST 2025 NEUTRAL CITATION C/SA/117/2025 JUDGMENT DATED: 17/07/2025 undefined limitation and plaintiff was required to show in the plaint the grounds upon which the exemption from such law is claimed. There is a presumption that registered document validly executed and the said registered document document prima facie would be valid in law. The onus to prove the same is on the plaintiff. Therefore, when the plaintiff has come forward with the case of fraud on the basis that fraud was committed while executing the sale-deed in the year 1971 and that seller did not have title of the suit property when the suit premises was sold in the year 1971, the plaintiff has to state the particulars of the said fraud but in the present case, no particulars have been stated in the plaint and mere word of 'conspiracy' while executing the sale-deed in the year 1971 has been mentioned. Therefore, in absence of any factual aspect on the same, the trial Court and the first appellate Court have rightly rejected plaint being barred by law more particularly on the ground of limitation. Moreover, whenever there is a challenge to registered document, date of registeration becomes date of deemed knowledge and as such by clever drafting and vague averments the suit cannot be brought within period of limitation which is otherwise hit by provisions. The party cannot allow to extend period of limitation by merely claiming that he had no knowledge when document is registered and the date of registration becomes date of deemed knowledge and in the present case when the first sale deed was executed same was executed in the year 1971 and registered in the year 1971 itself and mutation entry was made in favour of seller viz. Abdul Sattar Gulam Page 11 of 15 Uploaded by MISHRA AMIT V.(HC00187) on Fri Jul 18 2025 Downloaded on : Sat Jul 19 00:15:03 IST 2025 NEUTRAL CITATION C/SA/117/2025 JUDGMENT DATED: 17/07/2025 undefined Hakim and Navgan Vira on the basis of registered sale-deed. Immediately thereafter the plaintiff is deemed to have knowledge of the sale transaction and by making vague averment made in the plaint as earlier he had knowledge and came to know about the transaction in the year 2013. By such clever drafting plaintiff cannot be permitted to bring the suit within period of limitation which otherwise barred by law as the suit has been filed to challenge the registered sale-deed executed in the year 1971 after period of 41 years.
5.3 Under the circumstances, taking into consideration the averments made in the plaint and supporting documents provided along with the plaint, the suit is clearly barred by limitation. In the present case the execution of sale-deed in the year 1971 is not disputed by the plaintiff. There is nothing on record to show that the seller of the sale-deed of the year 1971 were not the owners of the suit property. In the present case, the plaintiff at para:3 has setout the pedigree and the plaintiff has made a statement of fact that the sale- deed has been executed in the year 1971 and thereafter subsequent sale-deed executed in the year 1975 and 2009. It is the case of the plaintiff that heirs of the plaintiff though alive have not signed and are not executors of the sale-deed nor they have received any consideration and, therefore, sale-deed requires to be quashed and set aside.
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that it only when the suit property was sold, the cause of action has arisen and cause of action has also arisen on 18.02.2013, when the notice was issued by the plaintiff with respect to the suit property. Therefore, theory put forward by the plaintiff is that the plaintiff has right in the suit property and nowhere in the plaint, the plaintiff has stated that plaintiff was not aware about the execution of sale-deed in the year 1971 and, thereafter, in the year 1975 and 2009. The question that arises is as to why no steps were taken for almost 41 years when plaintiff was very much aware about execution of the said sale-deed. The plaintiffs have become major and the suit is not filed within three years from the date when plaintiff becomes major. Moreover, fact also remains that though plaintiff is claiming that they have right in the suit property, the fact remains that the said sale-deed have been executed by their forefathers and it is also not the case of the plaintiff that they were not owners of the suit property. It is also not the case of the plaintiff that they were not having knowledge of the existence of the registered sale-deed of the year 1971, 1975 and 2009.
5.5 In the present case, ancestors for decades did not take steps and the heirs woke up from their slumber and filed suit claiming their so-called right over immovable property by making vague allegations to bring cause of action of filing the suit within period of limitation and thereafter taking defense that limitation is mixed Page 13 of 15 Uploaded by MISHRA AMIT V.(HC00187) on Fri Jul 18 2025 Downloaded on : Sat Jul 19 00:15:03 IST 2025 NEUTRAL CITATION C/SA/117/2025 JUDGMENT DATED: 17/07/2025 undefined question of law and fact and the matter requires trial and on the other hand party who purchased the property by registered sale deed by paying sale consideration is required to enjoy the possession and after 41 years receives notice from the Court with respect to so- called right which the legal heirs have slept over for 41 years and, therefore, such attempt on the part of the heirs are required to be nipped in the bud and if the Court finds that claim of the plaintiff is not genuine and plaintiff has no right of claiming in the suit property, the plaint is required to be rejected. The limitation has to run from the date when first cause of action arose and not on subsequent date of cause of action. If the sale-deed was executed on 17.11.2009, the plaintiff has himself stated in para:7, that the cause of action has arisen when suit property was sold by defendant nos.2.1 to 2.6 in favour of defendant no.3 and the plaintiff has not stated that sale-deed has been executed in the year 1971 and, therefore, cause of action has arisen only in the year 1971 when the first sale-deed was executed.
5.6 The judgments relied on by the plaintiff i.e. reported in the case of Rohit Chauhan vs. Surinder Singh (supra) and in the case of S. Ramachari and others vs. M/s. Trishala Infrastructure Pvt. Ltd. And ors. (supra) will not be applicable to the facts of the present case as the suit transaction has taken place in the year 1971 and in the said case, the property had come in the hands of defendant no.2 of the said case in partition and the property was alienated by the Page 14 of 15 Uploaded by MISHRA AMIT V.(HC00187) on Fri Jul 18 2025 Downloaded on : Sat Jul 19 00:15:03 IST 2025 NEUTRAL CITATION C/SA/117/2025 JUDGMENT DATED: 17/07/2025 undefined defendant no.2 and in the said case, the suit was not rejected under the provisions of Order VII Rule 11 of the CPC. The Apex Court, in the said case, was not dealing with the Order VII Rule 11 of the CPC.
6. Under the circumstances, this Second Appeal is devoid of any substantial question of law. Both the learned Trial Court and first appellate Court have rightly decided the issue between the parties in the right perspective and as stated above no substantial question of law arises in the present appeal. The appellants have failed to prove their case before the learned trial Court as well as before the first appellate Court. This Court does not find any substance in the present Second Appeal as the same is devoid of any merit both on facts and law and the same is dismissed at admission stage. Connected Civil Application, would also stand dismissed accordingly.
Sd/-
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