Bombay High Court
Shri Jayantilal Devji ... vs Mr Mangesh Dasrath Gaikar And Ors on 20 December, 2017
Bench: R.M. Savant
fa-469.14-aw-ca-2704.13
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
FIRST APPEAL NO.469 OF 2014
ALONG WITH
CIVIL APPLICATION NO.2704 OF 2013
Shri Jayantilal Devji Shah (Haria), age 53 yrs. ]
Occupation : Business residing at Vasundhara ]
Apartment, Zunjarrao Nagar, Kalyan (W), ]..... Appellant.
Dist. Thane ] (Orig. Plaintiff)
V/s.
1] Mangesh Dasrath Gaikar, ]
Age 40 years, Occ : Business, residing at ]
Sukh Shanti Niwas, Near Mangeshi Dham]
Birla College Rd., Kalyan (W). ]
]
2] Mahendra Sadashiv Dhone, ]
Age 29 years, Occ : Agriculturist, residing]
at Dhonecha Pada, Shahad Taluka Kalyan]
no.2 is the C.A. of nos.3 to 7 below hence]
summons and notices of nos. 3 to 7 be ]
served on No.2 alone :- ]
]
3] Smt. Kusum Sadashiv Dhone ]
Age 48 years, Occ : Household ]
]
4] Sau. Ranjana Lalchand Patil, ]
@ Ranjana Sadashiv Dhone ]
Age 31 years, Occ : Household ]
]
5] Shri.Chandrakant Sadashiv Dhone ]
Age 28 years, Occ : Agriculturist ]
]
6] Shri. Pramod Sadashiv Dhone, ]
Age 25 years, Occ : Household ]
]
7] Smt. Manglubai Tukaram Madvi ]
Since deceased through her LRs ]
]
7a] Mr. Prakash S/o Tukaram Madhavi ]
Age 44 years, Occ : Agriculturist residing ]
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]
7b] Mr. Naresh S/o Tukaram Madhavi ]
Age 42 years, Occ : Agriculturist residing ]
]
7c] Mr. Jaidas S/o Tukaram Madhavi ]
Age 32 years, Occ : Agriculturist residing ]
]
7d] Mrs. Sunita Wd/o Ganesh Khot Nee ]
Sunita Tukaram Madhavi ]
Age 37 years, Occ : Housewife ]
]
7e] Mrs. Nita Deepak Wadkar Nee ]
Nita Tukaram Madhavi ]
Age 35 years, Occ : Housewife ]
]
All residents of Shahad, Taluka Kalyan ]
District Thane. ]
]
8] M/s. Annapurna Universal, a partnership]
firm having its office at A-3, Anant Smruti]
Tata Line, Ramnagar, Dombivli (E) ]
Taluka Kalyan, District Thane. ]
]
9] Shri Manish P Patel ]
Age 40 years, occ : Builder, R/at ]
302, Kasturi Park, New Maneklal Estate ]
Ghatkopar (W), Mumbai ]
]
10] Shri Shantilal Shivaji Patel ]
Age 43 years, Occ : Builder, residing at ]
R No.8, Shri Vardhaman Apartment ]
II Floor, Ramnagar, Dombivli (E) ]
Taluka Kalyan, District Thane. ]
]
11] Shri Gopal D. Patel ]
Age 49 years, Occ : Builder, residing at ]
B/20, Nilkanth Puja, Dr. R. P. Road, ]
Dombivli (E), Taluka Kalyan ]
]
12] Kalyan Dombivli Municipal Corporation ]
through its Municipal Commissioner, ]
Shankarrao Chowk, Kalyan (West). ]
]
13] Taluka Inspector of Land Records, ]
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Kalyan Division Office, Third Floor, ]
Zunjarrao Bldg. Dhanya Bazar, ]..... Respondents.
Kalyan (W), Dist. Thane ] (Orig. Defendants).
Mr. Vishal Kanade a/w Mr. M P Jagani for the Appellant.
Mr. D S Mhaispurkar a/w Mr. S M Mangaonkar for the Respondent No.1, 8
to 11.
Mr. Deepak Natu i/by N Deepak & Co. for the Respondent No.2 to 7A to
7D.
Mr. Prashant Kamble i/by A S Rao for the Respondent No.12.
Mr. A R Patil, AGP for the Respondent No.13/State.
CORAM : R. M. SAVANT &
SANDEEP K SHINDE, JJ.
DATE : 20th December 2017
ORAL JUDGMENT : [PER R. M. SAVANT, J.]
1 Admit. Considering the challenge raised, taken up for hearing
forthwith by the consent of the learned counsel for the parties.
2 The above First Appeal challenges the order dated 08/02/2013
passed by the learned Civil Judge, Senior Division, Kalyan by which order the
Application filed by the Respondent No.1 herein i.e. the Original Defendant
No.1 under Order 7, Rule 11(a)(d) of the Code of Civil Procedure came to be
allowed and resultantly the plaint came to be rejected.
3 The facts giving rise to the filing of the above First Appeal in brief
can be stated thus :-
The Appellant herein is the original Plaintiff. The Respondent Nos.
2 to 7 are the heirs of one Ganpat Dagdu Dhone. The Respondent No.1 herein
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is the original Defendant No.1 claims through the Respondent Nos. 2 to 7
herein. The Respondent Nos. 8 to 11 i.e. the original Defendant Nos. 8 to 11
have the rights created in their favour by the Respondent No.1 herein i.e. the
original Defendant No.1. The Respondent Nos.12 and 13 are the Public
Authorities exercising the powers under the relevant Acts.
In the context of the controversy, it is only the Plaintiff, the
Defendant No.1 and the Defendant Nos.2 to 7 who can be said to be the
relevant parties, the said parties would be referred to as per their designation
in the Suit viz. The Appellant would be referred to as the Plaintiff, the
Respondent No.1 would be referred to as the Defendant No.1, and the
Respondent Nos. 2 to 7 would be referred to as the Defendant Nos.2 to 7.
4 The bone of contention between the parties is the land bearing
Survey No.37/2 admeasuring 12000 sq.mtrs (Now claimed by the Defendant
No.1 as 12430 sq.mtrs.). The said land originally belonged to Shri Vijay
Krishnalal Parekh and Smt. Pushpaben D Dani. In respect of the said land one
Ganpat Dagdu Dhone was the tenant (Kul) recognized as such under the
Bombay Tenancy and Agricultural Lands Act 1948 (for short "BT&AL Act"). It
is the case of the Plaintiff as averred in the plaint that he had already
purchased from the said owners Shri Vijay Krishnalal Parekh and Smt.
Pushpaben D Dani the land admeasuring 22250 sq.mtrs. in the said Survey
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No.37 in the year 1987. It is the case of the Plaintiff that upon this the tenant
Ganpat Dagdu Dhone was persuading the Plaintiff to purchase the part of the
land in the said Survey No.37 of which he was the tenant. The parties
accordingly entered into an Agreement for Sale dated 20/02/1988. (It seems
that the said Agreement for Sale has been subsequently registered on
11/05/2009.) The said Ganpat Dagdu Dhone also executed Irrevocable
General Power of Attorney dated 29/09/1988. It is averred by the Plaintiff
that pursuant to the said Agreement for Sale dated 20/02/1988, the Plaintiff
was put in possession and he is in possession as such from the date of the said
Agreement for Sale. It has further been averred by the Plaintiff that out of the
said property i.e. 12000 sq.mtrs, an area of 5480 sq.mtrs. was gifted by him to
one Shahu Shikshan Sanstha of Pandharpur. It has further been averred by the
Plaintiff that since the plot of land which was gifted to the said Shahu Shikshan
Sanstha did not have access, the Plaintiff provided the said Shahu Shikshan
Sanstha the access through the remaining land. It has further been averred by
the Plaintiff that the said Survey No.37 was bifurcated at his behest on account
of the Gift Deed executed by him in favour of the said Shahu Shikshan Sanstha.
In so far as the land gifted to the said Shahu Shikshan Sanstha is concerned,
the same came to be designated as Survey No.37/2 whereas the remaining
land with the Plaintiff was designated as Survey No.37/1. It has further been
averred by the Plaintiff that out of the said survey No.37/2, an Agreement for
Sale was entered into by the Plaintiff with Shri Girish Suryakanth Latke. It is
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the case of the Plaintiff that the said Agreement for Sale was cancelled giving
rise to the dispute between the Plaintiff and the said Girish Latke resulting in a
Suit filed by the Plaintiff for appropriate reliefs in which suit an order of status
quo was passed by the concerned Court. It is averred by the Plaintiff that the
Defendant No.1 who has the financial wherewithal approached the Plaintiff to
purchase the said Survey No.37/2 which the Plaintiff refused. It is further
averred by the Plaintiff that behind the back of the Plaintiff the Defendant
Nos.2 to 7 i.e. the heirs of the said Ganpat Dagdu Dhone executed a
Development Agreement dated 31/12/2007 in respect of the land admeasuring
12430 sq.mtrs. as also the Power of Attorney in favour of the Defendant No.1.
It is the case of the Plaintiff that both the Development Agreement as well as
the Power of Attorney were illegally registered with the concerned Sub-
Registrar. It is thereafter averred by the Plaintiff that the Defendant Nos.1 to 7
applied to the Defendant No.13 for survey of the land to be carried out. The
Plaintiff by his letter dated 07/05/2008 informed the Defendant No.13 i.e. the
Survey Officer that he is in settled possession of the said land and therefore
there is no necessity for survey. However, if the Defendant No.13 wants to
carry out the survey, the same should not be without the knowledge and
consent of the Plaintiff. It is the case of the Plaintiff as averred that the
Defendant No.13 highhandedly carried out the survey and showed the area of
12430 sq.mtrs at the place and choice of the Defendant No.1. It is the case of
the Plaintiff that it is at the behest of the Defendant No.1 that the said Survey
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No.37/2 was further bifurcated into Survey No.37/2 and 37/2 (P). It is the
case of the Plaintiff that on 17/03/2011 the Defendant No.1 visited the suit
land and once again threatened the Plaintifff of dire consequences. Thereafter
in the plaint the Plaintiff has inter-alia made a reference to the correspondence
between the Plaintiff and the Statutory Authorities, as also between the
Defendants inter-se, by which correspondence according to the Plaintiff the
Defendant No.1 asserted his rights as an owner by virtue of the Development
Agreement executed by the Defendant Nos.2 to 7 in his favour. It is therefore
the case of the Plaintiff that the Defendant Nos.1 to 11 are in illegal use,
occupation and possession without any right, title and interest in the suit
property. It is lastly averred by the Plaintiff that he was always willing to
perform his part of the contract dated 20/02/1988 and his obligations
thereunder, but the Defendant Nos.2 to 7 have refused to do so resulting in the
Plaintiff being constrained to file the Suit in question.
5 In the context of the challenge raised in the above First Appeal, it
would be apposite to refer to the substantive prayers which have been sought
in the same. The same are prayer clauses (a), (c), (d) and (f) amongst the
prayers. The said prayers are reproduced herein under for the sake of ready
reference.
(a) That this Hon'ble Court may be pleased to declare that
the said Agreement for Sale dated 20 th February, 1988
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executed by the said late Shri Ganpat Dagdu Dhone in
favour of the Plaintiff is valid, subsistin, in force and
binding on the Defendant Nos.1 to 11 and the same is
neither cancelled nor terminated, revoked in any
manner whatsoever and therefore the Plaintiff is
entitled for the specific performance of the said
Agreement for Sale dated 20th February 1988 executed
by the said late Shri Ganpat Dagdue Dhone in favour of
the Plaintiff being Exhibit A hereto in respect of the suit
land by calling upon the Defendant Nos. 2 to 7 to
execute and register deed of conveyance in favour of the
Plaintiff.
(c) That this Hon'ble Court may be pleased to declare that
the purported Development Agreement dated
31.12.2007 executed by Defendant nos. 2 to 7 in favour
of the Defendant No.1 being Exhibit F hereto as also
purported Power of Attorney dated 31.12.2007 being
Exhibit G hereto in respect of the land described in
Exhibit A are null and void ab-initio and not binding on
the Plaintiff and the same be revoked and cancelled.
(d) That this Hon'ble Court may be pleased to declare that
the purported Development Agreement dated
13.05.2008 executed by the Defendant No.1 in favour of
the Defendant Nos.8 to 11 in respect of the land more
particularly described in Exhibit A to the Plaint are null
and void ab-initio and not binding on the Plaintiff and
the same be revoked and cancelled.
(f) That this Hon'ble Court may be pleased to declare that
the Defendant Nos.1 to 11 or such of them are in illegal
use, occupation and possession of suit land admeasuring
12,430 sq.mtrs. bearing Survey No.37, Hissa No.2 P
situated at village Shahd, Taluka Kalyan, Dist. Thane
and more particularly described in Exhibit A hereto and
the Defendant Nos.1 to 11, their family members,
agents and servants, the partners of the Defendant No.8
or any person or persons claiming through them be
directed to remove themselves from possession of the
said land admeasuring 12,430 sq.mtrs. as aforesaid
together with their servants and agents belongings, lock,
stock and barrel and to handover to the Plaintiff quite,
vacant and peaceful possession thereof.
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6 The Defendant No.1 filed the instant Application invoking Order 7
Rule 11(a)(d) of the CPC. The rejection of the plaint was sought on the
ground that the plaint does not disclose any cause of action and that the relief
of specific performance is barred by limitation. Suffice it would be to state that
in so far as absence of cause of action to file the suit is concerned, it was the
case of the Defendant No.1 that having regard to the averments made in the
plaint viz. that the vendor of the Plaintiff i.e Ganpat Dagdu Dhone was a
tenant under the BT & AL Act, the transaction in respect of the land in his
occupation could not have been entered into without obtaining the permission
under Section 43 of the BT & AL Act and hence the Plaintiff cannot derive any
right under the said Agreement for Sale dated 20/02/1988 and if that be so
the Plaintiff has no cause of action to file the suit for specific performance.
In so far as clause (d) is concerned, the rejection of the plaint was
sought on the ground that the Plaintiff was aware of the said Development
Agreement dated 31/12/2007 entered into between the Defendant No.1 and
the Defendant Nos. 2 to 7 as he had objected to the survey being carried out by
his letter dated 07/05/2008 and had also recorded his statement before the
Survey Officer on 16/05/2008 and therefore the suit filed in the year 2011 was
beyond the period of limitation prescribed by Article 54 of the Limitation Act.
The said clause (d) was also sought to be invoked on the ground that the
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survey and the sanction of the plans has been carried out in exercise of the
powers conferred by the Maharashtra Land Revenue Code and the Maharashtra
Regional Town Planning Act, and since filing of a civil suit challenging the
order passed under the said Acts is barred, the plaint was required to be
rejected on the said ground.
7 To the said Application, the Plaintiff filed his reply and denied the
case of the Defendant No.1. The Plaintiff questioned the locus standi of the
Defendant No.1 to file the said Application as according to the Plaintiff, the
Defendant No.1 had already divested himself of his rights by executing the
Agreement in favour of the Defendant Nos.8 to 11. The Plaintiff denied the
fact that there is no cause of action to file the suit in question for specific
performance as according to the Plaintiff the permission under Section 43 of
the BT & AL Act was required to be obtained prior to or at the time of the
execution of the conveyance in respect of the property.
8 In so far as the issue of limitation is concerned, it was the case of
the Plaintiff that since the survey was not carried out till the year 2010 and
hence there was no cause of action for the Plaintiff to file the suit and it is only
in the year 2011 that the cause of action arose for the Plaintiff to file the suit
and when the threat was given by the Defendant No.1 acting on behalf of the
Defendant Nos.2 to 7, that the Plaintiff filed the suit in question.
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9 It is in the back-drop of the pleadings in the plaint, the gist of
which has been referred to herein above, that the Trial Court ventured to
decide the Application filed under Order 7 Rule 11 (a)(d) of the CPC. On
behalf of the parties, judgments were sought to be relied upon in support of
their respective assertions as regards the applicability of Section 43 of the BT &
AL Act. The Trial Court has by the impugned order as indicated above allowed
the said Application in so far as the suit being hit by limitation, in so far as the
suit being barred under the Maharashtra Land Revenue Code and the
Maharashtra Regional Town Planning Act is concerned, since orders were
already passed in respect of the Defendant No.12, the Trial Court did not deem
it appropriate to pass any orders. The Trial Court however rejected the ground
of there being no cause of action as according to the Trial Court, permission
under Section 43 of the BT & AL Act could be obtained at the time of execution
of the conveyance. The Trial Court in that regard relied upon the judgment of
this Court reported in 2001 (3) Bom. C.R. 255 in the matter of Balu Baburao
Zarole & ors. v/s. Shaikh Akbar Shaikh Bhikan & ors.
10 In so far as the ground of limitation is concerned, the Trial Court
held that since the Plaintiff had represented to the Survey Officer by his letter
dated 07/05/2008 objecting to the survey being carried out by the Survey
Officer, the Trial Court imputed knowledge of the Development Agreement
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dated 31/12/2007 to the Plaintiff as on 07/05/2008 and since the suit was
filed in June 2011, the same would be barred having regard to the limitation of
3 years stipulated by Article 54 of the Limitation Act.
11 In so far as the other reliefs are concerned, the Trial Court was of
the view that the said reliefs were an offshoot of the main substantive relief of
specific performance and was therefore of the view that the said reliefs cannot
be taken into consideration in so far as the issue of limitation is concerned. In
so far as bar contained in the Maharashtra Land Revenue Code and the
Maharashtra Regional Town Planning Act is concerned, as indicated above, the
Trial Court was of the view that since the order has already been passed in
respect of the Defendant No.12, no orders were necessary to be passed in that
regard, but however observed that the plaint was required to be rejected being
barred by limitation. As indicated above it is the said order dated 08/02/2013
passed by the Trial Court which is taken exception to by way of the above First
Appeal.
12 Heard the learned counsel for the parties. The learned counsel
appearing for the Appellant Shri Kanade would submit that the Trial Court had
erred in reckoning the starting period of limitation from 07/05/2008 when the
Plaintiff objected to the survey being carried out. The learned counsel would
submit that mere notice of survey and the objection of the Plaintiff to the same
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would not give a cause of action to the Plaintiff to file the suit in question and
impute knowledge to the Plaintiff of the Development Agreement. It was the
submission of the learned counsel that mere notice of survey would not result
in a compulsorily cause of action in so far as the Plaintiff is concerned. It was
the submission of the learned counsel that it is only when the threat to the
Plaintiff's possession had arisen that the cause of action for filing the suit arose
and that event transpired sometime in the year 2011 and therefore the suit as
filed was within limitation. The learned counsel would also submit that apart
from the specific performance, the Plaintiff had also sought the relief of putting
the Plaintiff back in possession which relief was based on the Plaintiff's
previous possession for which relief the limitation prescribed is 12 years under
Article 64 of the Limitation Act. To buttress the aforesaid submissions, the
learned counsel for the Appellant sought to place reliance on the judgment of a
learned Single Judge of this Court reported in 2008(5) Mh.L.J.18 in the
matter of Elamno Menion Dias v/s. Archbishop and others. And the
judgment of a Division Bench of this Court reported in AIR 2005 Bombay 442
in the matter of Satish Dalichand Shah v/s. Municipal Corporation of
Greater Bombay. It was the submission of the learned counsel that the Trial
Court had erred in taking into consideration the averments in the Application
filed under Order 7 Rule 11 of the CPC by the Defendant No.1 when it is well
settled that whilst trying the Application under Order 7 Rule 11 of the CPC,
only the averments in the plaint have to be taken into consideration.
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13 Per contra, the learned counsel appearing for the Respondent
Nos.1, 8 to 11 Shri Mhaispurkar would submit that having regard to the
averments made in the plaint and especially clause (m) and (n) of the plaint,
the findings of the Trial Court in respect of the ground of limitation cannot be
faulted with. It was the submission of the learned counsel that since the
Development Agreement dated 31/12/2007 is a registered document, the same
would constitute notice in terms of Section 3 of the Transfer of Property Act,
1882. If that be so the date for reckoning the period for limitation would be
31/12/2007. The learned counsel would submit that even assuming that the
date 07/05/2008 when the Plaintiff objected to the notice of survey issued by
the Defendant No.13 is taken into consideration, the suit filed in June 2011 is
beyond limitation. The learned counsel sought to place reliance on the
judgment of the Apex Court reported in (2007) 15 SCC 174 in the matter of
Janardhanam Prasad v/s. Ramdas on the aspect of a registered document
constituting a notice to the parties.
14 The learned counsel appearing for the Respondent Nos.2 to 7 Shri
Natu would reiterate the submission which was urged before the Trial Court
viz. the Agreement for Sale entered into between the Plaintiff and the said
Ganpat Dagdu Dhone is hit by Section 43 of the BT & AL Act and therefore the
Agreement for Sale executed by the said Ganpat Dagdu Dhone in favour of the
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Plaintiff is of no avail to the Plaintiff so as to give him a right to file a suit for
specific performance.
15 Having heard the learned counsel for the parties, we have
considered the rival contentions. The issue which arises for consideration is
whether the suit filed by the Plaintiff for specific performance of the Agreement
for Sale dated 20/02/1988 was required to be rejected on the touchstone of
Order 7 Rule 11(d) of the CPC as done by the Trial Court. In the earlier part of
the instant Judgment we have already referred to in brief the averments made
in the plaint. There can be no gainsaying of the fact that an Application under
Order 7 Rule 11 has to be adjudicated on a demurrer i.e. on the basis of the
averments in the plaint and the defence of the Defendants is not to be taken
into consideration. It is in the said context that the clauses (m) and (n) of the
plaint assumes importance. Prior to the said clauses (m) and (n) the Plaintiff
has referred to the events which have transpired from the Agreement for Sale
dated 20/02/1988 executed in his favour to the filing of the suit by him in
respect of the transaction relating to one Girish Latke. The Plaintiff has
thereafter averred as regards the clout that the Defendant No.1 seems to be
having in the area in question as also the financial wherewithal of the
Defendant No.1. The Plaintiff has thereafter in proximity averred that the
Defendant No.1 was persuading the Plaintiff to sell the suit property to him
which the Plaintiff had refused. It is thereafter that clauses (m) and (n) of
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paragraph 7 of the plaint are placed. The said clauses (m) and (n) read thus :-
(m) Behind the back of the Plaintiff, the Defendant
No.1 being influential person involved in and an active
politics and as the Plaintiff did not pay any heed to the
Defendant No.1, he caused the Defendant Nos.2 to 7
who without having any authority or share, right, title
or interest of whatsoever nature in the suit land
illegally and highhandedly signed and registered in
favour of the Defendant No.1 a purported Development
Agreement dated 31st December, 2007 in respect of
land admeasuring about 12,430 sq.meters and further
illegally and highhandedly granted Power of Attorney
in his favour even though the Defendant Nos. 2 to 7
had no legal right to do so as their grand father i.e. the
said Ganpat Dagdu Dhone had already sold and
transferred the Suit Land to and in favour of the
Plaintiff. The said Development Agreement and Power
of Attorney have been illegally and highhandedly
registered before Sub-Registrar Kalyan-1 under Sr.
No.2997 of 2008 and Sr. No.2998 of 2008 respectively
both dated 21st April 2008. Hereto annexed and
marked Exhibit F is xerox copy of the purported
development Agreement dated 31st December 2007.
Hereto annexed and marked Exhibit G is xerox copy of
the said purported power of attorney.
(n) The Defendant Nos.1 to 7 further illegally called
upon the Defendant No.13 for alleged survey of lands
at Survey No.37, Hissa No.2. Upon knowing the same,
the Plaintiff by his letter dated 07.05.2008 to the
Defendant No.13 inter alia informed him that the
Plaintiff was in settled possession of the said Survey
no.37/2 since 1988 onwards and which was under his
right and possession and therefore there was no
necessity at all for survey however if the Defendant
No.13 desired for such survey, he should not do so
without the consent and knowledge of the Plaintiff.
Hereto annexed and marked Exhibit H is Xerox copy of
the said letter dated 07.05.08.
A reading of the said clauses (m) and (n) therefore give an indication that the
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Plaintiff was aware of the transaction i.e. the Development Agreement dated
31/12/2007 in respect of the suit property. This is fortified by the details
which the Plaintiff has given in the said clause (m) of paragraph 7 of the plaint
as regards the registration of the Development Agreement and the Power of
Attorney. As can be seen from paragraph 7 of the plaint, it is the case of the
Plaintiff that the Defendant Nos.1 to 7 have further allegedly called upon the
Defendant No.13 for the alleged survey of the suit property. The averments
made in the said clause (n) therefore indicate that the sequence of events have
been elaborately mentioned by the Plaintiff, which is indicative of the fact that
he had the knowledge of the said events viz. The execution of the Development
Agreement dated 31/12/2007 and on the said basis survey which was sought
by the Defendant No.1 by making the Application to Defendant No.13.
16 Now coming to the survey and measurement of the land, from the
documents produced by the learned counsel for the Appellant Shri Kanade it is
deciphered that the application for survey was made by the one of the heirs of
the said Ganpat Dagdu Dhone on 01/03/2008. The notice of survey addressed
by the Defendant No.13 seems to be the consequence of the said application
made by one of the heirs of the said Ganpat Dagdu Dhone. There is no dispute
about the fact that the Plaintiff has vide his letter dated 07/05/2008 objected
to the survey being carried out and has by his statement recorded on
16/05/2008 before the Survey Officer stated that the survey should not be
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carried out without his knowledge and consent. In the backdrop of the
averments made in the Plaintiff which are, as indicated above, very elaborately
refer to the transaction between the Plaintiff and the said Ganpat Dagdu Dhone
and thereafter between the Defendant No.2 to 7 and the Defendant No.1 which
Development Agreement is dated 31/12/2007, the only conclusion that can be
reached is that the Plaintiff was aware of the said transaction dated
31/12/2007 if not prior or on the same day, at least on 07/05/2008 when he
objected to the survey being carried out.
17 In so far as a suit for specific performance is concerned, the
limitation for the same is prescribed by Article 54 of the Limitation Act which
reads thus :-
Description of suit Period of Limitation Time from which period
begins to run
54. For specific Three years The date fixed for the
performance of a contract performance, or, if no such
date is fixed, when the
plaintiff has notice that
performance is refused
Hence the limitation starts when the date for performance is fixed and if no
such date is fixed, there is a refusal on the part of the vendor. In the instant
case admittedly no date was fixed for performance and therefore the limitation
would have to be reckoned from the date of refusal. As indicated above the
heirs of the said Ganpat Dagdu Dhone i.e. the Plaintiff's vendor entered into a
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Development Agreement on 31/12/2007 with the Defendant No.1 which was
registered. The heirs applied for survey on 01/03/2008. The said Development
Agreement and the application was therefore an affront to the Plaintiff's right
which he claimed under the Agreement for Sale dated 20/02/1988. Hence the
said Development Agreement and the application for measurement would have
to be construed as a refusal on the part of the heirs to complete the transaction
which their father had entered into on 20/02/1988. The Plaintiff obviously
ought to have taken the said fact as a refusal by the heirs i.e. his vendor to
complete the transaction and therefore ought to have filed the suit within 3
years of 01/03/2008 or at least within 3 years of 07/05/2008 when he
objected to the survey. That being not done by the Plaintiff, the suit for specific
performance is obviously barred by limitation, having regard to Article 54 of
the Limitation Act.
The contention urged on behalf of the Plaintiff that since in the
suit, recovery of possession is also sought, and since in respect of a suit for
recovery of possession based on previous possession the limitation is of 12
years, the suit filed is within time. In our view the said contention cannot be
accepted. It is required to be noted that having regard to the frame of the suit,
it can be seen that the same had been essentially filed for specific performance
of the Agreement for Sale dated 20/02/1988. the other reliefs as rightly
observed by the Trial Court are only an offshoot of the said principal relief.
lgc 19 of 24
fa-469.14-aw-ca-2704.13
Significantly in the plaint there is not a whisper as to when the Plaintiff has
lost possession and as to who dispossessed him. If the Plaintiff in fact was
dispossessed as claimed by him, he could obviously have filed a suit under
Section 6 of the Specific Relief Act for recovery of possession within 6 months
of such dispossession. The conduct of the Plaintiff is such that belies the case
of the Plaintiff of any such dispossession.
It is well settled that whilst adjudicating upon an application
under Order VII Rule 11 of the CPC the plaint as a whole has to be
meaningfully read and the Court would have to see through clever drafting
which creates an illusion of a cause of action. If the said test is applied the
cause of action being pleaded on account of loss of possession is merely with a
view to bring the suit within limitation. The contention urged on behalf of the
Plaintiff that the Trial Court has also taken into consideration the facts pleaded
in the Application is not borne out by the order. The order only refers to the
facts which are contained in the averments in the plaint.
18 Now coming to the judgment of the learned Single Judge of this
Court in Elmano Menino Dias's case (supra) is concerned, there can be no
dispute of the proposition of law laid down therein viz. That whilst considering
the Application under Order 7 Rule 11 of the CPC, the averments made in the
plaint are relevant and nothing beyond that. As per the proposition that if
lgc 20 of 24
fa-469.14-aw-ca-2704.13
there is slightest doubt and the point is arguable then the plaint cannot be
rejected under Order 7 Rule 11 of the CPC. In the instant case, as indicated
above, the facts on record ex-facie indicate that the suit filed in the year 2011
after the refusal of the Defendant Nos.2 to 7 which is exemplified by the fact of
they entering into a registered Development Agreement and applying for
survey would indicate that the suit is barred by limitation.
19 Now coming to the judgment of the Division Bench of this Court in
Satish Dalichand Shah's case (supra). In our view the said judgment would
not aid the Plaintiff in coming out of the clutches of the bar of limitation. The
Division Bench in the said case was concerned with the limitation to file a suit
challenging an order passed by the Municipal Corporation under Section 351
of the Mumbai Municipal Corporation Act directing demolition of an extended
portion of a struacture. The period of limitation in so far as the said Act is
ingrained or prescribed in/by Section 527. In the said case the suit was filed
beyond six months of the accrual of the cause of action. In the said case the
rejection of the plaint was sought to be challenged on the ground that the
limitation for filing suit which is a period of 6 months from the accrual of the
cause of action would have to be reckoned from the date when the Corporation
sought to take action pursuant to the order passed under Section 351. The
Division Bench negatived the said contention and held that the period of
limitation would have to be reckoned from the date when the order under
lgc 21 of 24
fa-469.14-aw-ca-2704.13
Section 351 came to be passed and not when the officers/employees of the
Corporation came on the site to take action pursuant to the said Order. In the
said case the order was passed on 02/09/1994 and the officers and employees
of the Corporation had come on site on 22/03/1996. Hence the Division
Bench held that the period of limitation would start to run from 02/09/1994
and not 23/03/1996. Applying the said judgment to the facts of the present
case wherein it is the case of the Plaintiff that the date of reckoning should be
from the date when the survey was carried out, in our view cannot be accepted
as implicit in the heirs entering into a registered Development Agreement with
the Defendant No.1 and applying for survey is the factum of their refusal to
complete the transaction in so far as the Plaintiff is concerned.
20 The issue has to be looked at from one more perspective, having
regard to the judgment of the Apex Court in Janardhanam Prasad's case
(supra). The Apex Court in the said case has held that since the document in
question is registered, the same would constitute a notice in terms of Section 3
of the Transfer of Property Act. If that be so, the document in the instant case
i.e. the Development Agreement dated 31/12/2007 is a registered document
and therefore, the notice of the same would have to be attributed to the
Plaintiff. Hence the Plaintiff had a notice of the document being executed and
consequentially refusal on the part of the heirs to complete the transaction. If
that be so, then the suit filed in June 2011 for specific performance of his own
lgc 22 of 24
fa-469.14-aw-ca-2704.13
Agreement is obviously barred by limitation.
21 As indicated above, the Trial Court has reckoned the limitation
from 07/05/2008 when the Plaintiff objected to the survey being carried out
which fact is the acceptance of the Plaintiff of knowledge of the Development
Agreement dated 31/12/2007 entered into between the Defendant Nos.2 to 7
and the Defendant No.1.
22 In our view, on both the counts i.e. on the basis of the objection
taken by the Plaintiff vide his letter dated 07/05/2008 as also on account of
the fact that the Development Agreement dated 31/12/2007 being a registered
one, the same would constitute a notice, the suit filed in June 2011 is
obviously barred by limitation.
23 It would not be out of place to mention a few facts which have
been placed on record on behalf of the Defendant Nos.8 to 11. The said
Defendants have filed an Affidavit in Reply as also an Additional Affidavit to
the Civil Application for interim reliefs filed in the above First Appeal. The
sum and substance of the said affidavits is that the said Defendants have
constructed about 10 buildings on the land in question in respect of which they
have obtained occupation certificates from the Kalyan Dombivli Municipal
Corporation, and that the Purchasers of flats/Residents of the said buildings
lgc 23 of 24
fa-469.14-aw-ca-2704.13
have constituted themselves into Co-operative Housing Societies which are
registered. Hence the affidavits disclose that the said land has been
substantially developed by the Respondent Nos.8 to 11 after the Defendant
No.1 had entered into a Development Agreement with them. Hence though the
aforesaid facts have no bearing in so far as the Application filed under Order
VII Rule 11 of the CPC is concerned, however, in our view they cannot be
ignored whilst adjudicating upon the above First Appeal.
24 For the reasons afore-stated, we do not deem it appropriate to
interfere with the impugned order passed by the Trial Court allowing the
Application filed by the Defendant No.1 under Order 7 Rule 11 of the CPC.
The above First Appeal is accordingly dismissed.
25 In view of the dismissal of the above First Appeal, the Civil
Application No.2704 of 2013 does not survive and the same to accordingly
stand disposed of as such.
[SANDEEP K SHINDE, J] [R.M.SAVANT, J]
lgc 24 of 24
