Bombay High Court
Mohan Antu Salunkhe And Ors vs Santosh Mahadeo Khape on 17 October, 2023
Bench: Amit Borkar
2023:BHC-AS:31022
19-cra-21-2020.doc
Nikita
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
CIVIL REVISION APPLICATION NO.21 OF 2020
Mohan Antu Salunkhe and Ors. ... Applicants
V/s.
Santosh Mahadeo Khape ... Respondent
Mr. Kalpesh U. Patil, for the Applicants.
Ms. Padmini Ainapure for Respondent (Appointed as
Legal Aid Council).
CORAM : AMIT BORKAR, J.
DATED : OCTOBER 17 2023
P.C.:
1. The defendant has filed present revision application
challenging order dated 4th July 2019 passed by Trial Court
rejecting application under Order 7 Rule 11(d) to dismiss the suit
on the ground of limitation.
2. The respondent filed Regular Civil Suit No.122 of 2017
seeking relief of declaration of ownership based of sale deed dated
2nd February 1915; for vacant possession from the defendant;
injunction against defendant Nos.1 to 3.
3. According to the plaintiff based on sale deed dated 2 nd of
February 1915, predecessor of plaintiff became owner as title of
the property devolved on the plaintiff. On 19th December 2016,
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plaintiff issued notice to respondent Nos. 1 to 12, to hand over the
possession. On their refusal, plaintiffs filed suit on 30 th March
2017.
4. The defendants Nos. 1 to 9, and 11 and 12 filed an
application under Order 7 Rule 11 contending that predecessors of
plaintiff on 24th June 1918 sold the suit property to the
predecessors of defendant. By suppressing such fact, suit is filed.
Therefore the suit is barred by limitation.
5. The Trial Court rejected the application holding that in the
facts of the case, the issue of limitation is mixed question of law.
6. The learned advocate for the applicant submitted that
non-disclosure of sale deed dated 24th June 1918 of the plaint is
clever drafting. If plaintiff had disclosed the execution of sale deed
dated 24th June 1918, the suit will be barred by limitation.
Therefore, according to him, the plaintiff should not get the
benefit of clever drafting. In support of his submission, he relied on
judgment in the case of Raghwendra Sharan Singh Vs. Ram
Prassana Singh (dead) by Legal Respresentatives
reported in (2020) 16 SCC 601 and Dahiben Vs. Arvindbhai
Kalyanji Bhanusali (Gujra) dead thr. Legal
Representtives and Ors. reported in (2020) 7 SCC 366.
7. Per contra, learned advocate for the respondent reliying on
the judgment in case of Shaki Bhog Food Industries Ltd. Vs.
The Central Bank of India & Anr. with Civil Appeal 2514 of
2020, and Shihari Hanumandas Totala Vs. Hemant Vithal
Kamat & Ors. with Civil Appeal No.4665 of 2021, submitted
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that in the facts of the case, the question of limitation is the mixed
question of law and fact as the defendant needs to prove execution
of the sale deed dated 24th June 1918 and the fact as to the date
when the possession became adverse.
8. On perusal of the plaint, along with the documents annexed
it appears that the plaintiff is seeking relief of declaration of
ownership, possession and injunction. The suit would be governed
by the Article 64 of the Limitation Act 1963. It is, therefore,
necessary for the Trial Court to adjudicate as to when the
possession of defendant become adverse based on the averments
in the plaint and documents along with the plaint. At this stage
this is not possible to record a finding as to when possession of
defendant became adverse. Apart from it, the issue of declaration
of ownership has claimed by the plaintiff needs to be adjudicated.
The relief of possession would be dependent on the declaration of
ownership sought by the plaintiff whereas a matter of fact.
The predecessors of plaintiff had executed sale deed on 24 th June
1918, is a fact which parties needs to prove.
The plaintiffs were not parties to the said documents. Therefore, it
cannot be said that the filing of suit and non-disclosure of alleged
sale deed dated 24th June 1918 is result of clever drafting. Since
the Trial Court based on evidence adduced by the parties need to
consider the issue of title of plaintiff and relief of possession, the
Trial Court was justified in rejecting the application holding that
issue of limitation in the facts of the case is mixed question of law
and fact.
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9. In so far as the judgment relied upon by the applicant are
concerned, there cannot be dispute about the legal preposition of
law laid down by the Apex Court. It needs to be noted in
Raghwendra Sharan Singh (supra). Apex Court held that
adjudicated under Order 7 Rule 11 needs to be made based on
averments in the plaint and document annexed therein. It is held
that the averments in the written statements contentions of
defendant has immaterial. It is also hedl that the plaintiff cannot
be allowed to circumvent. Article 59 of the Limitation Act, 1963
governs clever drafting. In the facts of the case, the factum of
execution of sale deed dated 24 th June 1918 needs to be proved
during the Trial.
10. In the case of Dahiben (supra) the Apex Court in paragraph
No.23.5 has held that the power covered on the Court to terminate
a civil action being drastic one. Conditions enumerated under
Order 7 Rule 11 are required to strictly adhered.
11. Therefore, in my opinion, for proof of transaction on 24 th
June 1918, the parties need to be given opportunity to lead
evidence and only thereafter, the Trial Court needs to adjudicate
the issue in relation to execution of sale deed in favour of
predecessors of defendant, therefore, in my opinion, there is no
error of jurisdiction committed by the Trial Court
12. The civil revision application stands disposed of in above
terms. No costs.
(AMIT BORKAR, J.)
