Bombay High Court
M/S. Kinara Dhaba And Resorts Pvt. Ltd. ... vs Ramilaben Dhirubhai Damani And Ors on 6 November, 2025
Author: N.J.Jamadar
Bench: N.J.Jamadar
2025:BHC-AS:47034
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
CIVIL REVISION APPLICATION NO.279 OF 2025
M/s. Kinara Dhaba and Resorts Pvt. Ltd. & Ors. ... Applicants
versus
Smt. Ramilaben Dhirubhai Damani and Ors. ... Respondents
Mr. Pradip Thorat with Ms. Vijaya S. Ingule i/by Mr. Rupesh Mandhane, for
Applicants.
Mr. Kamlesh P. Mali, for Respondent Nos.1 and 3.
CORAM: N.J.JAMADAR, J.
RESERVED ON : 7 OCTOBER 2025
PRONOUNCED ON : 6 NOVEMBER 2025
JUDGMENT :
1. This Revision Application is directed against the order dated 16 July
2024 passed by the learned Civil Judge, Vadgaon-Maval, whereby the
application preferred by the Applicants - Defendant Nos.1 and 2 for the
rejection of the plaint under the provisions of Order 7 Rule 11 of the Code of
Civil Procedure, 1908 ('the Code'), came to be rejected.
2. Shorn of superfluities, the background facts can be stated as under :
2.1 The Applicant No.1 - Defendant No.1 is a company registered under
the Companies Act, 1956. Defendant No.1 is engaged in the hospitality
business under the name and style of Kinara Dhaba and Resorts Pvt. Ltd.
Applicant No.2 is one of the directors of the Defendant No.1 Company and
looks after the management and the affairs of Defendant No.1. Respondent
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Nos.1 to 3 - Plaintiffs are the wife, son and daughter, respectively, of
Dhirubhai Chotalal Damani. He died intestate on 27 August 2007 leaving
behind the Plaintiffs as the legal heirs. The deceased Dhirubhai had
purchased 42.4 Are land out of Gat No.102, totally admeasuring 61.4 Are
situated at Village Vaksai, Tal Maval, Dist. Pune, under a registered
Instrument dated 15 January 1998 ('the suit property').
2.2 The deceased was a businessman and had purchased many properties
and estates during his lifetime. The Plaintiffs claimed, during the lifetime of
the deceased, they were unaware of the detailed status of the suit property.
The Plaintiffs caused search of the revenue record. After becoming aware of
the fact that the deceased was the holder of the suit property, the Plaintiffs
applied for and got their names mutated to the record of rights of the suit
property vide Mutation Entry No.1585.
2.3 In the year 2016, the Plaintiffs found that the name of the Government
of Maharashtra was mutated to the record of rights of the suit property vide
Mutation Entry No.1630, pursuant to an order dated 11 June 2014 that, a sum
of Rs.7,68,000/- was due and payable to the State Government towards the
royalty and penalty for unlawful excavation of the minerals from the suit
property, and, on account of default, the suit property stood attached. Further
enquiries revealed that Defendant Nos.1 and 2 were using the suit property
for parking of the vehicles of the customers who frequented their hotel.
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2.4 The Plaintiffs, thus, addressed a notice to the Defendants on 29 March
2016 calling upon the Defendants to handover clear and vacant possession of
the suit property. In response thereto, Defendant Nos.1 and 2 claimed that
the deceased had sold the suit property to Asaram Teju Rathod (Defendant
No.3) under the Sale Deed dated 3 January 2007. Thus, the Plaintiffs had no
subsisting right, title and interest in the suit property. Defendant Nos.1 and 2,
even otherwise, claimed to be in actual, open, uninterrupted and hostile
possession of the suit property from 10 February 2006 and, thus, the title of
the Plaintiffs was lost.
2.5 The Plaintiffs, thus, instituted a suit on 12 July 2018 seeking, inter
alia, declarations that the Defendants were the rank trespassers qua the suit
property; the Sale Deed dated 3 January 2007 in respect of the suit property
is void and illegal and does not bind the Plaintiffs and the consequential relief
of injunction and delivery of possession of the suit property.
2.6 Defendant Nos.1 and 2 have filed an application for rejection of
the plaint on various grounds, including that the suit claim was not properly
valued, the suit was bad for non-joinder of necessary parties and the failure to
furnish correct description of the suit property, and also barred by law of
limitation.
2.7 By the impugned order, the learned Civil Judge was persuaded to
reject the application observing, inter alia, that, though the suit claim was not
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properly valued, yet, as the Plaintiffs had paid the court fees on the basis of
the market value of the suit property under the provisions of Section 6(iv)(j) of
the Maharashtra Court Fees Act, 1959, the valuation of the suit claim and
the payment of the Court Fees thereon, cannot be faulted to such extent as to
reject the plaint at the threshold. The ground of bar of limitation was
negatived observing, inter alia, that the issue of limitation was mixed question
of law and facts and from the perusal of the averments in the plaint, it did not
appear that the suit was ex-facie barred by limitation. Investigation into facts
and documents which were not annexed to the plaint was warranted to
determine the bar of limitation, and, therefore, the plaint cannot be rejected on
the said count.
2.8 Being aggrieved, the Defendants have invoked the revisional
jurisdiction.
3. I have heard Mr. Pradip Thorat, the learned Counsel for the Applicants,
and Mr. Kamlesh Mali, the learned Counsel for Respondent Nos.1 and 3, at
some length. With the assistance of the learned Counsel for the parties, I
have perused the material on record.
4. Mr. Thorat would urge that the learned Civil Judge committed gross
error in law in declining to exercise the power to reject the plaint on the
ground of bar of limitation. Taking the Court through the averments in the
plaint, Mr. Thorat would urge, the learned Civil Judge was in error in holding
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that the investigation into facts was warranted to determine the bar of
limitation. On the contrary, according to Mr. Thorat, the averments in the
plaint would indicate that, immediately after the demise of Dhirubhai Damani,
the Plaintiffs claimed to have caused search of the revenue record. Yet, the
suit came to be instituted in the year 2018.
5. Moreover, according to Mr. Thorat, since Defendant No.3 had acquired
the ownership over the suit property under a registered instrument, that
constitutes a constructive notice under Section 3 of the Transfer of Property
Act, 1882. Thus, as the Deed of Conveyance was executed by the deceased
in favour of Defendant No.3 on 3 January 2007, the institution of the suit
seeking declaration qua the said instrument in the year 2018 was, ex-facie,
barred by law of limitation.
6. To buttress this submission, Mr. Thorat placed reliance on a recent
judgment of the Supreme Court in the case of Shri Mukund Bhavan Trust
and Ors. V/s. Shrimant Chhatrapati Udayan Raje Pratapsinh Maharaj
Bhonsle and Anr.1.
7. Mr. Thorat would further urge that, the learned Civil Judge was also in
error in not directing the Plaintiffs to correct the valuation despite holding that
the valuation of the suit claim was not proper. Therefore, the impugned order
deserves to be quashed and set aside, submitted Mr. Thorat.
1 2024 SCC Online SC 3844
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8. In opposition to this, Mr. Kamlesh Mali, learned Counsel for the
Respondents - Plaintiffs, supported the impugned order. It was submitted
that a bare perusal of the instrument under which Defendant No.3 allegedly
acquired the suit property is, ex-facie, fraudulent. Neither the photograph
affixed on the said Sale Deed is that of late Dhirubhai Damani. Nor the
signature is that of late Dhirubhai Damani. In fact, the said document appears
to have been executed by one Dhirubhai Savlaram Damani and not the
predecessor-in-title of the Plaintiffs. On the strength of such fraudulent
instrument, the Defendants have made an attempt to usurp the suit property.
9. Laying emphasis on the fact that initially names of the Plaintiffs were
mutated to the record of rights vide Mutation Entry No.1585 and the Plaintiffs
were unaware of the existence of the registered instrument in favour of
Defendant No.3 till a reference was made to the said document in the reply
addressed on behalf of the Defendant Nos.1 and 2, Mr. Mali would urge, in
the facts of the case, the question of limitation is indeed a mixed question of
law and facts. Therefore, the learned Civil Judge cannot be said to have
committed any error in declining to reject the plaint.
10. The basic facts appear to be rather incontrovertible. First, the deceased
was the holder of the suit property. The deceased had acquired the suit
property under the Indenture of Sale dated 15 January 1998. Second, the
deceased left behind the Plaintiffs as the surviving heirs. The mutation of the
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names of the Plaintiffs to the record of rights of the suit land vide Mutation
Entry No.1585 also does not appear to be much in contest. The controversy
between the parties revolves around the fact as to whether the deceased had
conveyed the suit property during his lifetime under the registered Instrument
dated 3 January 2007 and does it bind the Plaintiffs ?
11. Rejection of the plaint was primarily sought on the ground that the suit
for declaration qua the said Sale Deed dated 3 January 2007 instituted in the
year 2018 was ex-facie barred by law of limitation. The bar of limitation,
Defendant Nos.1 and 2 claimed, is evident from the very averments in the
plaint and no further inquiry was warranted.
12. It is trite, while considering the prayer for rejection of the plaint, under
the provisions of Order 7 Rule 11 of the Code, only the averments in the plaint
as a whole along with the documents annexed to the plaint are required to be
considered. The contentions of the Defendants or any other evidentiary
material cannot be delved into at the stage of such consideration. At the same
time, the plaint is required to be read as a whole in a meaningful manner and
not in formalistic manner. If an effort is made to demonstrate a cause of
action where none exists by resorting to clever drafting or the bar to the
maintainability of the suit is sought to be circumvented by camouflaging the
real transaction and the nature of the suit, then, it is the duty of the Court to
construe the true import of the averments in the plaint and nip the fruitless
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litigation in the bud.
13. In the case at hand, if the averments in the plaint are read as a whole, it
becomes evident that the plain and simple case of the Plaintiffs is that they,
being the Class I heirs of the deceased, are the owners of the suit property.
They became aware of the encumbrances on the suit property in the year
2016. They tried to obtain the certified copy of the record of rights. Further
enquiries revealed that the Defendant Nos.1 and 2 were in unlawful
occupation of the suit property, and, when confronted, Defendants had set up
an allegedly fraudulent sale deed as the instrument under which the
deceased had divested himself of the ownership over the suit property. These
averments in the plaint find prima facie support in the pre-suit notices
addressed on behalf of the Plaintiffs to the Tahasildar, Vadgaon on 18 March
2016 and Defendant No.1 on 29 March 2016.
14. In the reply to the notice, it appears Defendant Nos.1 and 2 referred to
the sale deed purportedly executed by the deceased in favour of Asaram Teju
Rathod - Defendant No.3 on 3 January 2007. Controverting the
genuineness of the said claim, the suit came to be instituted.
15. In the face of the aforesaid material, I find it rather difficult to accede to
the submission of Mr. Thorat that the claim of the Plaintiffs that they were
unaware of the registered sale deed in favour of Defendant No.3 is, ex-facie,
untenable and the date of the knowledge of the said sale deed, is an artificial
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date. In the rejoinder to the said reply, dated 3 January 2016, the Plaintiffs
called upon Defendant Nos.1 and 2 to give inspection of the documents and
alleged that the instrument was forged. Allegations of forgery are required to
be appreciated in the light of the fact that, apparently there is a disconnect
between the name of the vendor shown on the said instrument and the
predecessor-in-title of the Plaintiffs. Whether the photograph appearing on
the said sale deed is that of the predecessor-in-title of the Plaintiffs is again a
contentious issue and would warrant investigation into facts and adduction of
evidence.
16. From this standpoint, the learned Civil Judge was justified in holding
that, in the facts of the case, the date of knowledge of the sale deed to the
Plaintiffs appears to be a mixed question of law and facts.
17. Mr. Thorat would further urge, since the document is registered, it
constitutes a constructive notice, and, therefore, the suit ought to have been
instituted within a period of three years from the date of the accrual of the
cause of action.
18. In the case of Shri Mukund Bhavan Trust and Ors. (supra), the
Supreme Court in the facts of the said case and after adverting to the
provisions contained in Section 3 of the Transfer of Property Act, observed
that when a portion of the suit property has been conveyed by Court auction
and registered in the first instance and when another portion has been
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conveyed by a registered sale deed in 1952, there is a constructive notice
from the date of registration and the presumption under Section 3 of the
Transfer of Property Act, comes into operation.
19. The Supreme Court further postulated that though the question of
limitation generally is mixed question of law and facts, when upon meaningful
reading of the plaint, the Court can come to a conclusion that under the given
circumstances, after dissecting the vices of clever drafting creating an illusion
of cause of action, the suit is hopelessly barred, the plaint can be rejected
under Order VII Rule 11. In the facts of the said case, it was observed that,
that was not a case where a fraudulent document was created by the
appellant or his predecessors. The title to the suit property was conveyed in
1938 and 1952, and what transpired later by way of compromise was only an
affirmative assertion by the State.
20. I am afraid, the aforesaid pronouncement is of much assistance to the
Defendants. As noted above, there are clear averments of fraudulent
execution of the sale deed dated 3 January 2007, which, prima facie, find
support in the intrinsic evidence of the document itself. Secondly, the claim of
the Plaintiffs that they became aware of the said sale deed when the
instrument was first set up by the Defendants, is also borne out by the pre-suit
correspondence exchanged between the parties. Thirdly, the names of the
Plaintiffs were mutated to the record of rights of the suit property after the
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demise of the deceased, and, later on, encumbrance in favour of the State
was recorded. All these factors cumulatively warrant investigation into facts.
I am, therefore, impelled to hold that, in the facts of the case, the question as
to whether the suit is barred by limitation is a mixed question of law and facts
and its determination would warrant evaluation of the material and evidence
on record and it is not a case where, upon a bare perusal of the averments in
the plaint, an inference can be drawn that the suit is ex-facie barred by
limitation.
21. On the aspect of the proper valuation of the suit claim, suffice to note
that the Plaintiffs have valued the suit claim according to the market value of
the suit property and paid the Court fees in accordance with the provisions of
Section 6(iv)(j) of the Maharashtra Court Fees Act, 1959. In any event, the
issue of correct valuation of the suit claim and payment of court fees can be
framed and adjudicated at the trial.
22. Resultantly, in exercise of revisional jurisdiction, this Court does not find
material irregularity in the exercise of jurisdiction by the trial Court.
23. Hence, the following order :
ORDER
(i) Civil Revision Application stands dismissed.
(ii) No costs.
( N.J.JAMADAR, J. )
Signed by: S.S.Phadke
Designation: PS To Honourable Judge
Date: 06/11/2025 18:31:01
