Vasadiya Pradipsinh Ramsinhji vs Thakor Jilaben Amraji
2021 Latest Caselaw 6086 Guj

       C/CRA/153/2021                               ORDER DATED: 16/06/2021




             IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

               R/CIVIL REVISION APPLICATION NO. 153 of 2021

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                        VASADIYA PRADIPSINH RAMSINHJI
                                   Versus
                           THAKOR JILABEN AMRAJI
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Appearance:
MR ARPIT P PATEL(5497) for the Applicant(s) No. 1
for the Opponent(s) No. 1,2,3,4,5,6,7
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     CORAM:HONOURABLE MR. JUSTICE N.V.ANJARIA

                               Date : 16/06/2021

                                ORAL ORDER

Draft amendment dated 4.5.2021 already forming part of the papers of the application is granted at the request of learned advocate for the applicant, to be carried out immediately.

2. Heard learned advocate Mr. Arpit Patel for the applicant.

3. This Civil Revision Application under section 115 of the Code of Civil Procedure, 1908, is directed against order dated 8.2.2021 below Exhibit 22 passed by learned Principal Senior Civil Judge, Kalol, in Special Civil Suit No. 81 of 2016, whereby the application of the present applicant - original defendant under Order VII Rule 11, CPC, for rejection of the plaint, came to be rejected.

3.1 Application Exh. 22 came to be filed on the ground that the suit instituted by the plaintiff was liable to be rejected under clause (d) of Rule 11 of Order VII, CPC. The suit of the plaintiff -the respondent herein was for declaration, injunction and for protection of possession of the suit property. It was averred that the land bearing Survey No. 158/3,

C/CRA/153/2021 ORDER DATED: 16/06/2021

New Block No. 165 situated at village Santej, Taluka Kalol, Gandhinagar was belonging to the ancestor of the applicant named Thakore Amraji Kanaji. The said Thakore Amraji Kanaji was in possession of the land. The Revenue Entry in that regard was certified on 31.1.2000. It was stated that in the Village Form 7/12 names of all the co-sharers were accordingly mutated and the names of the plaintiffs stood in the Revenue Records and that the plaintiffs had been cultivating and obtaining produce from the said land. It was stated that the plaintiffs had not transferred or mortgaged the land in favour of anybody.

3.2 It was further stated in the plaint that the plaintiffs received notice in respect of RTS Appeal No. 197 of 2012 filed by defendant No.2 Vasadiya Pradipsinh Ramsinhji before the Prant Officer. Thereby, it came to the knowledge of the plaintiffs that the said appeal was filed against cancellation of earlier Entry No. 7181. The Plaintiffs averred that thereafter their advocate obtained necessary papers. At this juncture, on the basis of the papers obtained, plaintiffs' knew, it was further averred, that the defendant No.1 had committed fraud and had got executed sale deed dated 15.7.2009 and thereafter executed another sale deed dated 7.8.2009 in favour of defendant No.2, both acting in collusion. It was stated that though the names of the plaintiffs were shown in the 7/12 Records, neither they were informed nor any consent was obtained for executing the sale. They were not paid any sale consideration amount, plaintiffs stated.

3.3 It was the further case that on the basis of such documents got executed fraudulently, the defendants had been trying to mutate their names in the Revenue Record.

4. It was on the basis of such pleadings and premise, the suit was instituted wherein the cause of action mentioned to be that plaintiffs were

C/CRA/153/2021 ORDER DATED: 16/06/2021

illiterate persons and they knew about the transactions only when they obtained papers upon knowledge of the RTS Appeal and the receipt of the notice in that regard. It was further mentioned that thereafter the defendants and and their men had been trying to forceably obtain the possession of the land from them. The plaintiffs therefore prayed for declaration that the two sale deeds aforementioned were illegal, null and void and not binding to them. The plaintiffs prayed for permanent injunction against the defendants seeking protection of their possession.

4.1 In application under Order VII Rule 11, the applicant defendant contended that the facts stated in the plaint were not correct. The suit was instituted after gap of six years and therefore it was barred by law of limitation. It was contended that the case of the plaintiffs that they were in possession was not believable and that any panchnama was not done through the Court Commissioner. It was prayed on the basis of various contentions that the suit having been instituted after six years, it was barred by limitation and therefore the plaint was liable to be rejected under Order VII Rule 11 (d) of the CPC.

4.2 Reply was filed by the plaintiffs to the said application at Exh. 27, in which they inter alia contended that when they came to know about the transaction of sale, they immediately filed the suit and that the limitation would start from the date of knowledge.

5. Learned judge noted that the prayer for rejection of the plaint was based on the ground of limitation and that the suit was barred by limitation. Learned judge took into account various judgments on the aspects and highlighted that the plaintiffs have made averments about the fraud and cheating. Truth or otherwise of the pleadings of the plaintiff would be gone into only at the stage of trial.

       C/CRA/153/2021                              ORDER DATED: 16/06/2021




5.1    It is well settled that in order to ascertain whether the plaint is

liable to be rejected under Order VII Rule 11 of the CPC, it is the entire plaint which is needed to be read as a whole together with the documents produced with the plaint. As could be noticed from the contents and pleadings of the plaint delineated hereinabove, the plaintiff alleged commission of fraud and deceit against defendant No.1. It was alleged that defendant no.1 got executed sale deed from the plaintiff and thereafter sold out the suit property in favour of defendant No.2, which was in collusion. As per the case of the plaintiff, he was not aware about the sale transactions. However, when defendant No.2 filed RTS appeal and the papers of the RTS appeal were received, the plaintiff knew about the cancellation of entry, transaction of sale and the fraud acted upon in that regard. The averments are made that the signature on the papers were obtained by exerting false promise and since the plaintiffs were illiterate and poor persons, other side misused their illiteracy and subsequently misused the documents.

5.2 The prayer in the suit was to set aside the sale deed allegedly executed fraudulently and for setting aside or cancelling the instrument including sale deed. Under Article 59 of the Limitation Act 1963, the period of limitation prescribed is of three years. The said period would start running when the facts entitling the plaintiff to have the instrument or decree cancelled or set aside or the contract rescinded first become known to him. When the plaintiffs have alleged fraud, period of limitation would commence to run from the date of knowledge of the plaintiff when the contract was first rescinded. The question whether any fraud was acted upon and whether the plaintiff had knowledge about the transaction, which would make the period of limitation running, are the questions of evidence. It is only after leading of evidence theses aspects could be considered.

        C/CRA/153/2021                              ORDER DATED: 16/06/2021




5.3     Learned judge has rightly observed that the question of limitation

is a mixed question of law and fact, therefore could not be rejected threshold. The defendants would have right to defend about the limitation which may be considered at the time of framing of the issues.

6. In the aforesaid view, the rejection of application under Order VII Rule 11, CPC, by the court below, could be said to be eminently proper and legal. Plaint is not liable to be rejected.

7. Resultantly, order dated 8.2.2021 passed by Principal Senior Civil Judge, Kalol, is not liable to be interfered with. The present Revision Application is meritless. The same is accordingly summarily dismissed.

(N.V.ANJARIA, J) C.M. JOSHI