[Cites 9, Cited by 0]
Bombay High Court
Ryberg Cyril Cosmas Henriques vs Kashmira Eruch Billimoria on 28 January, 2026
2026:BHC-AS:2206
FA-1631-2025 (final).odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
FIRST APPEAL NO. 1631 OF 2025
Ryberg Cyril Cosmas Henriques ]
Aged 63 years, Indian inhabitant ]
R/at : Flat No. 6, Salsette C.C.H.S. ]
56 Hill Road ]
Bandra (West), Mumbai - 400 050. ] ...Appellant
Versus
Kashmira Eruch Billimoria ]
Aged 59 years, Occ : Unknown ]
Indian inhabitant, R/at : B-41 ]
Beena Apartment, Sir M. V. Road ]
Andheri (East), Mumbai - 400 069. ] ...Respondent
------------
Mr. Joel D'souza for Appellant.
Mr. Chriag Mody for Respondent.
------------
Coram : Sharmila U. Deshmukh, J.
Reserved on : 19th January, 2026.
Pronounced on : 28th January, 2026.
Judgment :
1. The present First Appeal is at the instance of the Plaintiff being
aggrieved by the order dated 5th July, 2022 passed by the City Civil
Court rejecting the Plaint under Order VII, Rule 11(d) of Code of Civil
Procedure, 1908. The parties are referred to by their status before the
Trial Court.
Sairaj 1 of 10
FA-1631-2025 (final).odt
2. S. C. Suit No. 1448 of 2021 was filed by the Plaintiff on 2 nd July,
2021 seeking a declaration that the registered deed of conveyance
dated 19th March, 2008 is fabricated, bogus, fraudulent and invalid
document with respect to the suit property which is land bearing
Survey No. 94, Hissa No. 2, C.T.S. No. 104 situated at Culvem, Manori
Gorai, Taluka Borivali and for an order of permanent injunction
restraining the Defendant from accessing, entering or remaining in
possession of the suit property. It is pleaded in the plaint is that the
Plaintiff is the legal heir and grandson of late Cosmas Henriques and
Serah Mary Henriques. The suit property was owned by Serah Marry
Henriques and is the ancestral property of the Plaintiff acquired from
late Serah Mary Henriques who died intestate on 1 st October, 1985. The
suit property stands mutated in the name of Mary Elias Kojmia Arik
since last more than 70 years and has not been sold to the Defendant.
It is pleaded that in or around the year 2008, one Jabel Rodrigues
impersonated herself as Ms. Jabel Intur Rodrigues alias Mary Sera Elis
Arik to the Defendant and a fabricated and bogus Deed was executed
on 19th March, 2008 between the Defendant and Jabel purporting to
be the conveyance of the suit property. On 11 th November, 2009, Jabel
and others were arrested by Gorai police and F.I.R. came to be
registered against them and the proceedings are pending before the
26th Metropolitan Magistrate Court, Borivali. It is stated that on 19 th
Sairaj 2 of 10
FA-1631-2025 (final).odt
April, 2008, the Defendant filed an application with Tahsildar to
transfer the suit property and to change the record in the name of the
Defendant, which came to be rejected right up to Additional
Commissioner (Konkan Division). On 30 th December, 2009, the
Defendant filed Suit No. 13 of 2010 seeking a declaration of right, title
and interest in the suit property which was withdrawn. In or about
2018, the Plaintiff came across an unauthorized compound wall of 1.8
m height around the periphery of the suit property for which a number
of complaints were made by the Plaintiff's late father and Writ Petition
was filed in June, 2019 in High Court for demolition of unauthorized
structures.
3. The pleading as regards the cause of action and limitation in
paragraph 23 reads as under:
"23. Cause of action & limitation: The Plaintiff
came to know about the bogus deed of conveyance
dated 19.3.2008 in about the year 2015. The suit is
filed within the period of limitation as prescribed
under limitation Act."
4. The Defendant filed an application seeking rejection of plaint
under Order VII, Rule 11(d) of Code of Civil Procedure, 1908
contending that the suit is barred by law of limitation as the document
is required to be challenged within period of three years. It was
Sairaj 3 of 10
FA-1631-2025 (final).odt
contended that the revenue proceedings were contested by the
Plaintiff's late father, which proceedings were of the year 2008, which
shows awareness of execution of deed. It was further contended that
the Plaintiff has pleaded that he acquired knowledge about bogus
deed of conveyance in or about year 2015 and the suit was therefore,
in any event required to be filed within period of three years from the
date of acquisition of knowledge. The Defendant also questioned the
pecuniary jurisdiction of the Trial Court to try and entertain the suit.
5. The application came to be resisted by the Plaintiff contending
that the issue of limitation is mixed question of fact and law requiring
trial. It was denied that the Plaintiff was aware about the execution of
the subject conveyance prior to the year 2015 and that the Plaintiff had
returned to India only in the year 2015. It was contended that during
COVID-19 pandemic, the Hon'ble Apex Court had extended the period
of limitation for the suits and other proceedings for the period from
15th March, 2020 to 28th February, 2022 and the suit is filed within
limitation.
6. The Trial Court framed the necessary points for determination as
regards the limitation and jurisdiction and answered the issue of
limitation against the Plaintiff. The Trial Court noted the pleading in
the plaint about the knowledge of the Plaintiff in the year 2015 and
held that the suit ought to have been filed within period of three years
Sairaj 4 of 10
FA-1631-2025 (final).odt
from the date of knowledge in the year 2015 and the suit is barred by
limitation under Articles 58 and 59 of the Limitation Act, 1963.
7. Learned counsel appearing for Plaintiff submits that the suit was
filed seeking declaration of ownership and for injunction as the
conveyance executed in the year 2008 was forged and fabricated. He
submits that the Plaintiff's father expired in March, 2020 and only
thereafter the Plaintiff could file the present suit, which was filed on
2nd July, 2021. He submits that by virtue of COVID-19 pandemic, the
period of limitation has been extended by the Hon'ble Apex Court. He
submits that the Hon'ble Apex Court in the case of Shanti Devi (since
deceased) through LRs. Goran vs. Jagan Devi and Others 1 in identical
facts has considered whether the provisions of Article 59 or 65 of
Limitation Act, 1963 would apply and has held that Article 59 would
apply to voidable transactions and not to those which are void and
applied Article 65 to the suit therein. He points out that the Hon'ble
Apex Court noted the decision of Hussain Ahmed Choudhary v.
Habibur Rahman2 where it was reiterated that a person who is not a
party to an instrument would not be obliged in law to seek its
cancellation. He submits that Article 65 would apply in the present case
and not Article 59 and therefore, the suit is within limitation.
8. Learned counsel appearing for Defendant would submit that the
1 2025 INSC 1105.
2 2025 SCC OnLine SC 892.
Sairaj 5 of 10
FA-1631-2025 (final).odt
decision of Shanti Devi vs. Jagan Devi (supra) is clearly inapplicable as
in the facts of that case the relief of injunction and alternate prayer of
joint possession was sought. He submits that the death of the father of
the Plaintiff does not give rise to the cause of action for applicability of
the order of Hon'ble Apex Court extending the period of limitation. He
submits that there is clear pleading in the plaint that the Plaintiff
acquired knowledge about the conveyance in or about 2015 and hence,
the suit which was filed on 2nd July, 2021 is clearly barred by limitation.
9. The point arising for determination is whether upon ex-facie
reading of the plaint, the suit was barred by law of limitation and hence
could be terminated at the threshold under Order VII, Rule 11(d) of
CPC.
10. It is well-settled that while adjudicating an application under
Order VII, Rule 11 of Code of Civil Procedure, 1908, it is only the
averments in the Plaint which are germane. The plaint has to be read
holistically and in a meaningful manner to consider whether the
averments of the plaint ex-facie show that the suit is barred by
limitation. In event, the issue of limitation is a mixed question of law
and fact which requires an inquiry into facts then the same requires
evidence to be led and the action cannot be terminated under Order
VII, Rule 11 of CPC.
11. With these settled principles in mind, if the plaint is perused, the
Sairaj 6 of 10
FA-1631-2025 (final).odt
suit seeks a declaration that the subject deed of conveyance dated 19 th
March, 2008 is fraudulent, fabricated, bogus, invalid Deed with respect
to the suit property and for order of injunction restraining the
Defendant from accessing or remaining on the suit property.
12. The Plaintiff is not the executant of the subject deed of
conveyance and is not obliged to seek its cancellation. As held by the
Hon'ble Apex Court in the case of Hussain Ahmed Choudhary v.
Habibur Rahman (supra), in such case the Plaintiff must seek
declaration that the said instrument is not binding upon him or that it
is invalid in so far as he is concerned. In cases where the character of
the sale deed is assailed as being fraudulent, this requirement is
implicitly satisfied since the very averment that the sale deed is
fraudulent indicates that the Plaintiff did not intend to be bound by it.
13. Applying the said proposition of law to the facts of the present
case, the plaint pleads that the subject conveyance deed is fraudulent,
fabricated and invalid document. It was therefore not necessary for the
Plaintiff to seek cancellation of the deed and resultantly Article 59 of
Limitation Act, 1963 would have no application. The substantive relief
of declaration of invalidity of the subject deed in effect seeks a
declaration that the conveyance deed is not binding upon the Plaintiff
and is invalid so far as the Plaintiff is concerned. The limitation would
be governed by Article 58 of the Schedule of the Limitation Act, 1963
Sairaj 7 of 10
FA-1631-2025 (final).odt
which provides a period of three years to obtain a declaration and the
time starts to run when the right to sue first accrues. Article 58 uses
the expression "right to sue first accrues" and the period of limitation
would commence from the day the right to sue first accrued upon the
Defendant clearly and unequivocally threatening to infringe the right
of the Plaintiff. The plaint pleads that on 19th April, 2008, the
Defendant filed an application with the Tahsildar to transfer the suit
property in the name of the Defendant. This act of the Defendant
constituted an unequivocal threat to the right of the Plaintiff in the
suit property and gave cause of action to the Plaintiff's pre-decessor to
sue for declaration. The Plaintiff's father though contested the
proceedings did not file any civil proceedings qua the invalidity of the
deed of conveyance. Even accepting that the right to sue first accrued
to the Plaintiff upon acquiring knowledge about the conveyance deed,
it is pleaded in paragraph 23 of the plaint as under:
"23. Cause of action & limitation : The Plaintiff came to
know about the bogus deed of conveyance dated
19.3.2008 in about the year 2015. This suit is filed within
the period of limitation as prescribed under limitation
Act."
14. The contention that the Plaintiff acquired the right to sue upon
death of his father is unsustainable. It is not the death of the Plaintiff's
father, which gave rise to cause of action but at the very least, the
acquisition of knowledge by the Plaintiff about the existence of the
Sairaj 8 of 10
FA-1631-2025 (final).odt
conveyance deed. Accepting the Plaintiff's own averments, the
Plaintiff acquired knowledge in the year 2015 and the plaint was
required to be filed within period of three years. In Nusli Neville Wadia
vs Ivoery Properties and Others 3, the Hon'ble Apex Court was
concerned with the interpretation of Section 9A of CPC as it then
existed in the statute book. The Hon'ble Apex Court considered the
issue of limitation in context of Order VII, Rule 11 of CPC. It held that it
cannot be laid down as proposition of law under Order 7 Rule 11(d)
that the plaint cannot be rejected as barred by limitation. It can be said
that it is permissible to do so mainly in a case where the plaint
averment itself indicates the cause of action to be barred by limitation
and no further evidence is required to adjudicate the issue.
15. Considering the pleaded case in the plaint, I am not inclined to
accept that the issue of limitation is mixed question of fact and law
requiring evidence to be led. The plaint is ex-facie barred by law of
limitation on the facts stated in the plaint itself and the action is
required to be terminated at the threshold.
16. The decision of Shanti Devi vs. Jagan Devi (supra) arose out of
the suit filed seeking permanent injunction and in the alternative, joint
possession and that the sale deed dated 14th June, 1973 which was also
executed by the plaintiff be declared as fraudulent and void insofar as
3 (2020) 6 Supreme Court Cases 557.
Sairaj 9 of 10
FA-1631-2025 (final).odt
share of Plaintiff is concerned. In this factual scenario, the Hon'ble
Apex Court considered whether Article 65 or Article 59 is applicable to
the suit. The Hon'ble Apex Court ruled out applicability of Article 59 as
the same would take within its fold voidable and not void document
and as the finding was that the Plaintiff had not executed the
document, the document was void ab initio. The Hon'ble Apex Court
held that the suit was filed for possession based on title and would be
governed by Article 65 of Limitation Act. The decision is clearly
distinguishable on facts as in the present case, the suit is not for
possession based on title for applicability of Article 65 of Limitation
Act.
17. The extension of the period of limitation by the Hon'ble Apex
Court during COVID-19 pandemic applies where the period of
limitation expired during COVID-19 pandemic. In the present case, the
period of limitation for filing the suit expired in 2018 itself and
therefore, the Plaintiff cannot seek benefit of extension of limitation
by the Hon'ble Apex Court.
18. In light of above, the issue of limitation is answered against the
Plaintiff. Resultantly, First Appeal stands dismissed.
19. Interim Applications, if any, do not survive for consideration and
stand dismissed.
[Sharmila U. Deshmukh, J.]
Sairaj 10 of 10
