Bombay High Court
Sau. Kusum Parasram Kullarkar vs Shri. Madhukar S/O Pandhari Kullarkar on 22 July, 2025
2025:BHC-NAG:7054
1/6
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR.
CIVIL REVISION APPLICATION NO.10 OF 2024
Sau. Kusum Parasram Kullarkar, Applicant
Aged about 64 years, Occu. Household, (Ori. Defendant)
R/o. Plot No. 95, Chitnis Nagar, In front of
Motha Taj Bag, Nagpur - 440 034
-Versus-
Shri Madhukar S/o. Pandhari Kullarkar, Non-applicant
aged about 74 years, Occ. Retired, (Original
R/o. Plot No.101, New Malghi Nagar, Plaintiff)
Nagpur - 440 034
---------------------------------------------------------------------------
Mr. Shantikumar Shivshankar Sharma, counsel for the applicant
Mr.S.P.Kshirsagar, counsel for non-applicant.
---------------------------------------------------------------------------
CORAM :MRS. VRUSHALI V. JOSHI, J.
Judgment reserved on : 15.07.2025
Judgment pronounced on : 22.07.2025
JUDGMENT:
-
1) Heard.
2) Rule. Rule made returnable forthwith. The Civil Revision
Application is heard finally with the consent of the learned counsel
appearing for the parties.
3) Being aggrieved by the order passed by the Joint Civil Judge
Junior Division, Nagpur in Civil Suit No.971 of 2019 rejecting the
Kavita.
plaint of the applicant under Order VII Rule 11(d) of the Civil
Procedure Code, the applicant has filed this application.
4) The non-applicant has filed the suit for declaration that the
sale deed dated 26.06.1991 with respect to the suit plot is not binding
on him and same is fraudulent and does not create any title in favour of
the defendant.
5) The second prayer is about decree of possession of the suit
property and permanent injunction.
6) It is the case of the applicant (original defendant) that on
29.08.2008, he came to know about the sale deed executed in favour of
the non-applicant(original plaintiff). The non applicant has pleaded
that he has issued legal notice dated 08.10.2008, calling upon the
present applicant to cancel fraudulent sale deed dated 26.06.1991. He
has further sought declaration that the alleged sale deed is not binding
on him as has not been executed by him and as such, has sought
declaration with respect to sale deed being sham, bogus document. It is
also averred by the plaintiff that the cause of action has accrued on
28.08.2008, when the plaintiff received the knowledge that the suit
plot was purchased from somebody by the defendant. The non-
applicant was aware about the sale deed dated on 28.08.2008, which he
has challenged by filing suit on 09.07.2019 by praying to recover the
Kavita.
possession on the basis of title, which is auxiliary to the relief prayed by
him.
7) It is argued by the counsel for the applicant that the suit is
barred by limitation from bare perusal of the pleadings in the plaint
itself. As per Article 56 of the Limitation Act under its Part III, suit
relating to the declaration of forgery of an instrument issued or
registered provides limitation for three years from the date on which
such issuance or registration came to the knowledge of the plaintiff.
8) The cause of action cannot be relied on the auxiliary relief,
which is for declaration of title and possession. The suit is filed after a
long period of eleven years, which is barred by limitation on the ground
that plaintiff has specifically pleaded that he got the knowledge about
execution of sale deed dated 28.08.2008. Hence prayed to set aside the
order passed by the trial court by allowing this application.
9) The learned counsel appearing for the non-applicant has
stated that the plaintiff is claiming the possession of the suit property
and for possession, the limitation is 12 years from the date of
knowledge. Therefore, the suit is within limitation.
10) Heard the learned counsel appearing for the respective
parties.
Kavita.
11) On perusal of the plaint, it reveals that as per prayer clause 1,
the plaintiff has prayed for declaration of sale deed dated 26.06.1991,
which is not binding on plaintiff, as it is fraudulent. Allegations about
execution of said sale deed by personation is made against defendant. If
only declaration is sought then the limitation is three years from the
date of execution of said instrument or from the date of knowledge.
However, if allegations of fraud are there then it is 12 years.
12) The applicant has placed reliance on the judgment of
Raghwendra Sharan Singh Vs. Ram Prasanna Singh (Dead) by Legal
Representatives in 2020 (16) SCC 601 in support of his argument that
by inserting word 'fraud' if the plaintiff tried to bring the case within
limitation, then it is the case of clever drafting. It is observed by the
Hon'ble Apex Court (supra) by relying on the judgment in the case of
N.V.Shrinivasa Murthy Vs. Mariyamma reported in (2005) 5 SCC 548
as well as in the case of Ram Prakash Gupta V. Rajiv Kumar Gupta,
reported in (2007) 10 SCC 59, if it is found from the averments of
plaint that the suit is clearly bared by law of limitation, the same can be
rejected in exercise of power under Order VII Rule 11(d) of the CPC. It
is also observed by the Hon'ble Apex court in C.S. Ramaswamy Vs.
V.K. Senthil and Others reported in 2022 DGLS(SC) 1273:-
Kavita.
7.9 Applying the law laid down by this Court in the
aforesaid decisions on exercise of powers under
Order VII Rule 11 CPC to the facts of the case on
hand and the averments in the plaints, we are of the
opinion that both the Courts below have materially
erred in not rejecting the plaints in exercise of powers
under Order VII Rule 11(d)CPC. The respective
suits have been filed after a period of 10 years from
the date of execution of the registered sale deeds. It is
to be noted that one suit was filed by the minor,
which was filed in the year 2006, in which some of
the plaintiffs herein were also party to the said suit
and in the said suit, there was a specific reference to
the Sale Deed dated 19.09.2005 and the said suit
came to be dismissed in the year 2014 and
immediately thereafter the present suits have been
filed. Thus, from the averments in the plaint and the
bundle of facts stated in the plaint, we are of the
opinion that by clever drafting, the plaintiffs have
tried to bring the suits within the period of
limitation, which otherwise are barred by limitation.
Therefore, considering the decisions of this Court in
the case of T.Arivandandam (supra) and other
decision of Raghwendra Sharan Singh (supra), and as
the respective suits are barred by the law of
limitation, the respective plaints are required to be
rejected in exercise of powers under Order VII Rule
11 CPC.
13) In case in hand serious allegations of fraud by personation are
made. Second prayer is for possession. The limitation for suit for
possession is 12 years and when the instrument is challenged on the
basis of fraud, as per Section 17 (1) of the Limitation Act,1963 the
limitation is 12 years. From the plain reading of the plaint it appears
that it is not a case of clever drafting to bring the suit in limitation but
the prayer shows that the same is for possession. Hence, it is within
limitation as per Article 64 of the Limitation Act,1963.
Kavita.
14) Hence there is no substance in the revision application. The
Civil Revision Application stands dismissed.
15) Rule stands discharged.
(MRS.VRUSHALI V. JOSHI, J)
Signed by: Kavita P Tayade
Designation: PS To Honourable Judge
Date: 22/07/2025 18:41:54
Kavita.
