M/S Umed Realators, A Partnership ... vs Smt. Shobha Wd/O Mahadeo ...
2017 Latest Caselaw 791 Bom

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                IN THE HIGH COURT OF JUDICATURE AT BOMBAY,

                        NAGPUR BENCH : NAGPUR



Civil Revision Application No. 36 of 2014



Applicants              :          1.  M/s Umed Realators, A registered Part-

                                   nership Firm, having its Office at Sarafa Lane,

                                   Gandhi Chowk, Wani,  District Yavatmal

                                   2. Smt Kaushalyabai Umedmalji Kathed, 

                                   Partner, M/s Umed Realtors, aged about 78 

                                   years, Occ: business, resident of Gandhi Chowk,

                                   Wani, District Yavatmal

                                   3. Narendra Umedmalji Kathed, Partner, M/s

                                   Umed Realators, aged about 54 years, Occ:

                                   business, resident of Gandhi Chowk, Wani, 

                                   District Yavatmal

                                   4. Mahendra Umedmalji Kathed, Partner, M/s

                                   Umed Relators, aged about 48 years, Occ: 

                                   business, resident of Gandhi Chowk, Wani, 

                                   District Yavamal

                                   versus


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 Non-applicants :                 1. Smt Shobha wd/o Mahadeo Deshpande, 

                                  aged about 85 years, Occ : nil, resident of 

                                  Mahalaxmi Kunja Apartment, Flat No. 3, 

                                  Rana Pratap Nagar, Arni Road, Yavatmal

                                  2. Smt Pratibhatai Sudhakarrao Welankiwar,

                                  aged 70 years, Occ: Household, resident of 

                                  Nagpur

                                  3. Sau Vinita Vikas Lothe, aged about 60 years,

                                  Occ: Household, resident of Nagpur

                                  Nos. 2 and 3 through their Power of Attorney,

                                  Aashish Uday Deshpande, aged 25 years, 

                                  Education, resident of Mahalaxmi Kunja 

                                  Apartment, Flat No. 3, Rana Pratap Nagar, 

                                  Arni Road, Yavatmal

                                  4. Uday Mahadeo Deshpande, aged about 

                                  65 years, resident of Sawanga Bk, Tahsil 

                                  Digras, c/o Suraj Supre, Arni Road, Yavatmal

                                  (since deceased, through his legal heirs) -

                                  4 (i) Smt Ashwini Uday Deshpande, aged 

                                  about 60 years, resident of  Mahalaxmikunj

                                  Apartments, Rana Pratap Nagar, Nagpur

                                  4 (ii) Sau Pooja Sachin, Deshpande, aged 


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                                    about  39 years, Occ: Household, 

                                    resident of Tapovan B-24, Somalwada, Nagpur

                                    4 (iii) Ashish Uday Deshpande, aged about 

                                    31 years, Occ: business, resident of Mahalaxmi

                                    kunj Apartment, Flat No. 3, Yavatmal



Shri M. G. Bhangde, Senior Advocate and Shri R. M. Bhangde, 
Advocate with him for applicants 

Shri A. A. Naik, Advocate for respondents no. 1, 2 and 3

Ms Junghare, Advocate for LRs 4(i) to 4 (iii)

Coram : A. S. Chandurkar, J

Date when arguments were heard - 20th February 2017

Date when judgment was pronounced - 17th March 2017

Judgment

1. The defendants in Regular Civil Suit No. 148 of 2012 have

filed the present Civil Revision Application as they are aggrieved by the

order passed by the trial Court rejecting the application moved by them

under provisions of Order VII, Rule 11 of the Code of Civil Procedure,

1908 (for short, "the Code") for rejection of the plaint.

2. The facts relevant for adjudicating the challenges as raised,

are that it is the case of the non-applicant nos. 1 to 3/plaintiffs that they

are predecessors of one Shri M. N. Deshpande and have received the

property which is land admeasuring 7.44 HR in a family partition dated

8.6.1969. Said Shri Deshpande expired on 7.4.1980 leaving behind the

plaintiffs and the defendant no. 5. According to the plaintiffs, the

defendant no. 5 without having any right or absolute interest in the suit

property, executed a sale deed of the same in favour of the defendant no.

2 on 14.5.1987. The plaintiffs got knowledge about the said transaction

in December 2009 and February 2011 during the course of mutation

proceedings. According to the plaintiffs, the said sale deed was void ab

initio and it did not confer any valid title on the defendant no. 2. The

transaction was also without obtaining the permission of the Competent

Authority under the provisions of the Maharashtra Tenancy and

Agricultural Lands Act, 1948. On that basis, the plaintiffs on 3.10.2012

filed suit for declaration that they are the owners of the suit property and

also for a decree for possession. An injunction was also sought seeking to

restrain the defendants from changing the nature of the suit property.

3. The defendant nos. 1 to 4 filed their Written Statement and

opposed the prayers, as made. Besides denying the claim of the plaintiffs,

it was pleaded that the suit was barred by limitation. The defendants

thereafter filed an application below Exhibit 25 under provisions of Order

VII, Rule 11 of the Code. Rejection of the plaint was sought on the

ground that it did not disclose any cause of action and that from the

statements made in the plaint, the suit was barred by the law of

limitation. This application was opposed by the plaintiffs by filing reply.

The trial Court by its order dated 15.2.2014 rejected the said application

by holding that the suit was filed within limitation. Being aggrieved, the

defendants have challenged the said order.

4. Shri M. G. Bhangde, learned Senior Advocate for the

applicants submitted that it was the case of the plaintiffs that the sale

deed dated 14.5.1987 executed by defendant no. 5 in favour of

defendant no. 2 was void ab initio. There was no prayer made by the

plaintiffs for cancellation of the aforesaid sale deed. The limitation for

filing such suit for possession was governed by provisions of Article 65 of

the Limitation Act, 1963 (for short, the "said Act") and the suit was

required to be filed within a period of twelve years from the date when

the possession of the defendants became adverse to that of the plaintiffs.

According to him, the date of knowledge of the aforesaid sale transaction

was not at all relevant for the purposes of applicability of Article 65 of the

said Act. As it was the case of the plaintiffs themselves that the sale deed

was void ab initio, there was no need to have the same set aside. The suit

in question having been filed after a period of twelve years from said sale

deed, it was clearly barred by limitation and the defendants had perfected

their title. In that regard, the learned Senior Advocate placed reliance

upon the decisions in State of Maharashtra v. Pravin Jethalal Kamdar

reported in (2000) 3 SCC 460; Jivaji Keshav Bapat v. Venkatesh

Krishna Byadgi reported in AIR 1940 Bombay 136; Dagadu Patil v.

Trakadu Patil reported in AIR 1957 Bombay 79; Gangadhar Pandurang

Puranik v. Dnyanoba Nivrutti Mundhe reported in 2010 (7) Mh. L. J.

477 and Prem Singh v. Birbal reported in (2006) 5 SCC 353.

It was then submitted that according to the plaintiffs,

defendant no. 2 was not an agriculturist and, therefore, the sale deed was

hit by the provisions of Section 89 (1) (a) of the Maharashtra Tenancy

Act, 1958. Such invalid sale would result in the property vesting in the

State government. Even on this count, the plaintiffs lost their title and

there was no cause of action to file the suit. It was further submitted

that under provisions of Order VII Rule 11 of the Code, only the plaint

averments were required to be taken into consideration by accepting the

case of the plaintiffs as correct. It was urged that as per the pleadings in

the plaint, the sale deed dated 14.5.1987 was a void document and

therefore there was no need whatsoever to have such void document set

aside. In that regard, reliance was placed on the decision in Kanayalal

Thakkar v. Shree Padmanabh Builders reported in 2011 (1) Mh. L.

939; T. Arivanandanam v. T. V. Satyapal reported in (1977) 4 SCC 467;

N. V. Srinivasa Murthy v. Mariyamma reported in (2005) 5 SCC 548

and Manoharlal Chatrath v. Municipal Corporation of Delhi reported

in AIR 2000 Delhi 40. It was, therefore, submitted that the plaint was

liable to be rejected in the aforesaid facts.

5. Shri A. A. Naik, learned counsel for the original plaintiffs on

the other hand supported the impugned order. According to him, as per

the plaint averments, the plaintiffs got knowledge about the aforesaid sale

deed on 30-12-2009 and the suit as filed for possession within a period of

twelve years from said date was within limitation. It was submitted that

as per the deed of management dated 26.3.1980, defendant no. 5 was to

manage the suit property on behalf of the family members and hence his

possession was permissive in nature. Unless such permissive possession

was delivered back, the same would not be adverse. He referred to the

provisions of Article 65 of the said Act and submitted that the expression

"become adverse" would come into play on the plaintiffs' getting

knowledge about the same. In support of his submissions, learned

counsel placed reliance upon the decisions in Smt Neelawwa v. Smt

Shivawwa reported in AIR 1989 Karnataka 45 and Raghubar Dayal

Prasad v. Ramekbal Sah reported in AIR 1986 Patna 78. It was then

submitted that the plea with regard as to the maintainability of the suit

with regard to the bar under Section 89 of the Maharashtra Tenancy and

Agricultural Lands Act, 1948 was not raised before the trial Court and

the same was being raised for the first time in these proceedings by

amending the Civil Revision Application. According to him, as a larger

relief of seeking possession after declaration of title had been prayed for

there was no reason to seek a lesser relief with regard to setting aside the

sale deed dated 14.5.1987. For said purpose, learned counsel referred to

the provisions of Order VII, Rule 7 of the Code and sought to rely upon

the decision in Rajendra Tiwary v. Basudeo Prasad & anr reported in

(2002) 1 SCC 90. It was thus submitted that the power under the

provisions of Order VII, rule 11 of the Code being drastic in nature, the

same could not be exercised in the present facts. Reference was made to

the decision in P. V. Guru Raj Reddy and anr v. P. Neeradha Reddy &

ors reported in 2015 (2) SCALE 337 in that regard.

Ms Junghare, learned counsel appeared for non-applicant

nos. 4 (I) to 4 (iii).

6. Since the defendants seek rejection of the plaint under

provisions of Order VII, Rule 11 of the Code, the legal position in that

regard as observed by the Hon'ble Supreme Court in Hardesh Ores (P)

Ltd. v. Hede And Company reported in 2007 (5) Mh. L. 577 would be

required to be taken into consideration. In the said decision, it has been

held as under :

"It is well settled that whether a plaint discloses a cause of action is essentially a question of fact, but whether it does or does not, must be found out from reading the plaint itself. For the said purpose the averments made in the plaint in their entirety must be held to be correct. The test is whether the averments made in the plaint, if taken to be correct in their entirety, a decree would be passed. The averments made in the plaint as a whole have to be seen to find out whether clause (d) of Rule 11 of Order 7 is applicable. It is not permissible to cull out a sentence or a passage and to read it out of the context in isolation. Although it is the substance and not merely the form that has to be looked into, the pleading has to be construed as it stands without addition or subtraction of words or change of its apparent grammatical sense."

7. In the plaint filed by the plaintiffs, it has been stated that the

suit property was received by the predecessor of the plaintiffs and the

defendant no. 5 by virtue of a family partition. The said property was

entrusted to defendant no. 5 by virtue of a management deed. However,

defendant no. 5 without having any right, sold the suit property to

defendant no. 2 on 14.5.1987. In paragraph 3 of the plaint, it has been

stated that in absence of any written consent from the plaintiffs and other

legal heirs, the sale deed executed by the defendant no. 5 dated

14.5.1987 was void ab initio. In paragraph 4 of the plaint, it is averred

that no title could be conferred on the basis of mutation entries in the

Record of Rights and that the sale deed executed by defendant no. 5

representing himself to be the owner of the suit property be declared null

and void and not binding on the plaintiffs. It is on that basis that the

plaintiffs have sought a declaration that they were the owners of the suit

property and have prayed for a decree of possession of the suit property.

8. As per the law referred to hereinabove, the averments in the

plaint as a whole would have to be taken into consideration and they have

to be taken to be correct. The pleadings have to be construed as they

stand without change of its grammatical sense and without being

subjected to any addition or subtraction. Thus, the Court would have to

proceed on the basis that the sale deed dated 14.5.1987 executed by

defendant no. 5 in favour of defendant no. 2 was void ab initio and not

binding on the plaintiffs, as averred. As per the application filed vide

Exhibit 25, it is the case of defendant nos. 1 to 4 that the suit appeared

from the statements in the plaint to be barred by the law of limitation.

That clause (d) of Rule 11 of Order VII of the Code includes the ground of

limitation has been held by the Hon'ble Supreme Court in Hardesh Ores

(P) Ltd. (supra).

9. As per Article 65 of the said Act, the period of limitation for

filing a suit for possession based on title is twelve years from the date

the possession of the defendant becomes adverse to the plaintiff. On the

aspect of possession of the defendant becoming adverse, the Privy Council

in Mahomed Musa v. Aghore Kumar Ganguli reported in AIR 1914 PC

27 has held that if possession is acquired by a person under an invalid

title and he continues to remain in possession for more than the statutory

period, his title becomes unassailable though the document of his title

may be invalid. Relying upon this decision, learned Single Judge in

Gangadhar Pandurang Puranik (supra) upheld the plea as to bar of

limitation under Article 65 of the said Act. In Collector of Bombay v.

Municipal Corporation of the City of Bombay & ors reported in AIR

1951 SC 469, it was held that the possession of a person not having a

legal title but under an invalid grant would be adverse to the legal title of

the owner. In Jivaji Keshav Bapat (supra), the Division Bench of this

Court after referring to an earlier Full Bench decision in Bhaurao v.

Rakhmin reported in (1899) 23 Bom 137 observed that when the vendee

enters into possession, his possession becomes adverse to the coparcenery

title or interest. In Dagadu Dhondu Patil (supra), the Division Bench

held that where an owner purports by an oral sale to transfer property

and delivers possession, the possession of the transferee must be deemed

to be adverse to the owner and suit for recovery of possession must be

filed within twelve years from the date when possession was delivered.

10. In view of the aforesaid legal position, the possession of the

defendants would become adverse on the execution of the sale deed on

14.5.1987 and the aspect of knowledge being obtained by the plaintiffs of

such transaction would not come into play. The contention raised on

behalf of the plaintiffs that the period of twelve years under Article 65 of

the said Act would commence from 30.12.2009 on which date they got

knowledge of the sale deed cannot be accepted. The period of limitation

would commence from 14.5.1987 when the sale deed was executed in

favour of defendant no. 2. Moreover, the fact that the plaintiffs also seek

possession of the suit property fortifies the aforesaid position.

11. According to defendant nos. 1 to 4, the suit having been filed

for possession on the basis of title, it was required to be filed within the

limitation prescribed by Article 65 of the said Act. In Prem Singh and

others (supra) it has been held that when a document is void ab initio, a

decree for setting aside the same would not be necessary as such

document would be non est in the eye of law. Article 59 of the said Act

would be applicable only with regard to a voidable transaction. In

Pravin Jethalal Kamdar (supra) the Hon'ble Supreme Court has held that

when possession has been taken by the defendant pursuant to a void

document, Article 65 of the said Act would apply and the limitation to file

the suit would be twelve years. It is further observed that when the

document of title is null and void, a suit for possession simplicitor could

be filed ignoring such document and in the course of such suit, it could be

contended that such document was a nullity. In said case, the sale deed

on the basis of an invalid order came to be executed on 23.8.1976 and the

suit for possession on the basis of limitation prescribed by Article 65 of

the said Act was held to be within limitation.

Once it is found that the period of limitation under Article 65

of the said Act would commence from 14.5.1987 when the sale deed in

question was executed by defendant no. 5, the suit as filed on 2.10.2012

is beyond the period of twelve years, as prescribed. Under provisions of

order VII, Rule 11 (d) of the Code, the plaint can be rejected if it is found

from a statement in the plaint to be barred by law. By considering the

pleadings of the plaintiffs that the sale deed dated 14.5.1987 was a void

document and as the plaintiffs seek possession on the basis of their title, it

is clear that the claim as made is barred by limitation.

12. Once it is found that the suit is barred by limitation under

Article 65 of the said Act, it is not necessary to go into the aspect of the

said sale being hit by provisions of Section 89 (1) of the Maharashtra

Tenancy and Agricultural Lands Act, 1948. Hence, I do not find it

necessary to record any finding on the submissions in that regard. Insofar

as the submission made on behalf of the plaintiffs by relying upon the

provisions of Order VII, Rule 7 of the Code that it was not necessary for

the plaintiffs to seek lesser relief of cancellation of aforesaid sale deed,

the said submission cannot be accepted. It is well-settled that a document

which is treated to be void ab initio, can be ignored as a nullity and it is

not necessary to have the same set aside. Even if it is assumed that the

sale deed dated 14.5.1987 was not required to be got cancelled by the

plaintiffs, the same cannot improve the case of the plaintiffs inasmuch as

the relief of possession which is the larger relief is itself found to be

barred by limitation. Moreover, provisions of Order VII, Rule 7 of the

Code could be applied after adjudication of the suit on merits when it is

found that the plaintiff has not made out any case for granting the relief

as prayed but the facts as established justify granting of a smaller relief.

In these facts, therefore, said submission cannot be accepted. The ratio of

the decision in Rajendra Tiwari (supra) cannot be made applicable in the

present facts. Similarly, the other decisions relied upon by the learned

counsel for the plaintiffs also cannot assist the case of the plaintiffs.

13. Thus, considering the aforesaid position, I find that

defendant nos. 1 to 4 have made out a case for rejection of the plaint

under provisions of Order VII, Rule 11 (d) of the Code on the ground that

the suit is barred by limitation. It is true that the power of rejection of the

plaint is drastic in nature as observed in P. V. Guru Raj Reddy (supra).

However, in the present case I am satisfied that all necessary ingredients

in that regard are satisfied. On that count, the order passed by the trial

Court below Exhibit 25 dated 15.2.2014 is quashed and set aside. The

application below Exhibit 25 is allowed and it is held that the plaint in

Regular Civil Suit No. 148 of 2012 stands rejected under provisions of

Order VII, Rule 11 (d) of the Code. Civil Revision Application is

accordingly allowed with no order as to costs.

A. S. CHANDURKAR, J

joshi