Rameshbhai Naranbhai Patel vs Ranjanben D/O Naranbhai Ramdas ...
2021 Latest Caselaw 15898 Guj

    C/CRA/194/2013                          JUDGMENT DATED: 08/10/2021




            IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

         R/CIVIL REVISION APPLICATION NO.      194 of 2013


FOR APPROVAL AND SIGNATURE:


HONOURABLE MR. JUSTICE VIPUL M. PANCHOLI

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1    Whether Reporters of Local Papers may be
     allowed to see the judgment ?

2    To be referred to the Reporter or not ?

3    Whether their Lordships wish to see the
     fair copy of the judgment ?

4    Whether this case involves a substantial
     question of law as to the interpretation
     of the Constitution of India or any order
     made thereunder ?

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           RAMESHBHAI NARANBHAI PATEL & 10 other(s)
                            Versus
    RANJANBEN D/O NARANBHAI RAMDAS PATEL & W/O NARESHBHAI
                     FULABH & 11 other(s)
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Appearance:
. for the Applicant(s) No. 7
MR RASHESH A RINDANI(5380) for the Applicant(s) No.
1,10,11,2,3,4,5,6,7.1,7.2,7.3,8,9
MR. JAVED S QURESHI(6999) for the Applicant(s) No.
1,10,11,2,3,4,5,6,7.1,7.2,7.3,8,9
MR MD CHAUHAN(1345) for the Opponent(s) No. 1
MR SHITAL R PATEL(2166) for the Opponent(s) No.
10.1,10.2,10.3,10.4,11.1,11.2,11.3,12,9
RULE SERVED BY DS(65) for the Opponent(s) No.
12,2,3,4,5.1,5.2,5.3,6,7,8
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    CORAM:HONOURABLE MR. JUSTICE VIPUL M. PANCHOLI

                        Date : 08/10/2021

                          ORAL JUDGMENT

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1. This Civil Revision Application is filed under Section 115 of the Code of Civil Procedure, 1908 (hereinafter referred to as the 'Code' for short) in which the applicants - original defendant Nos. 1 to 13 have challenged the order dated 02.04.2013 passed by the 14th Additional Senior Civil Judge, Vadodara below Exh.13 in Regular Civil Suit No.482 of 2011.

2. Heard learned advocate Mr. Rashesh Rindani for the applicants and learned advocate Mr. M.D.Chauhan for respondent No.1 - original plaintiff.

3. It is submitted by learned advocate for the applicants that respondent No.1 - original plaintiff has filed Regular Civil Suit No.482 of 211 before the Principal Senior Civil Judge, Vadodara contending that the suit properties are the ancestral properties of deceased Naranbhai Ramdas Patel and therefore as a daughter of the deceased, plaintiff is having her share in the suit property and consequently partition decree is also prayed. It is submitted that the predecessor of the parties i.e. Naranbhai Ramdas Patel expired on 30.10.1987 and after his death, entry No.2576 came to be mutated in the revenue record effecting the names of the heirs of the deceased including the plaintiff and defendants. Thereafter, the daughters of the deceased Naranbhai Ramdas Patel have relinquished their share in view of the family arrangement and therefore entry No.2577 came to be mutated with regard to the same. It is submitted that the respondent No.1 - original

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plaintiff challenged the said entry by filing Revenue proceedings before the Deputy Collector i.e. R.T.S. Appeal Nos. 54 of 1990 and 60 of 1990. It is submitted that the Deputy Collector disposed of the said appeals by observing that the respondent No.1 can approach the Civil Court since the dispute involved in the said appeals are of civil nature. Thereafter, the respondent No.1 - original plaintiff has filed the suit in the year 2011.

4. It is submitted that notices/summons were issued to the original defendants and the present applicants

- original defendant Nos. 1 to 13 have filed an application at Exh.13 under Order VII, Rule 11 of the Code in which it has been mainly stated that as the plaintiff has relinquished her rights in the suit property, no cause of action has arisen in her favour. It is further stated that suit is barred by the law of limitation and there is delay of more than 23 years in filing the suit. It is, therefore, urged that plait be rejected. Learned advocate for the applicants would submit that the trial Court, vide impugned order dated 02.04.2013, rejected the said application mainly on the ground that the question of limitation is not only a pure question of law but a mixed question of law and fact and whether the plaintiff is having any right, title or interest in the suit properties can be decided during the course of trial and without adducing the evidence, such question cannot be decided at this stage. The applicants have, therefore, filed the present

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application challenging the said order.

5. Learned advocate Mr. Rindani thereafter submitted that considering the averments made in the plaint itself, it is clear that the suit is clearly barred by the law of limitation and therefore the trial Court ought to have rejected the plaint only on this ground. It is further submitted that as per the averments made in the plaint, actual cause of action accrues to the plaintiff in 1990 when the plaintiff came to know about deletion of her name from revenue record. At this stage, it is also submitted that the plaintiff filed R.T.S. Appeals before the Deputy Collector challenging mutation entry and the Deputy Collector, while rejecting the said appeals, directed the plaintiff to file a Civil Suit, in spite of that, civil suit has been filed in the year 2011. Learned advocate would further submit that the other sisters have also relinquished their rights in favour of the brothers i.e. the present applicants and they have not filed any suit making allegations against the applicants herein. The only plaintiff i.e. one of the sisters has filed a civil suit. It is, therefore, submitted that plaintiff cannot bring the suit within a period of limitation by making clever averments/drafting. It is also submitted that the plaintiff has challenged the relinquishment of only valuable properties and did not challenge the relinquishment of her right in other properties. Thus, the initiation of proceedings by filing the suit is frivolous and vexatious and when it is barred

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by law of limitation, the impugned order passed by the trial Court be quashed and set aside.

6. Learned advocate has placed reliance upon the following decisions/orders passed by the Hon'ble Supreme Court as well as other High Courts:

1. Decision dated 13.03.2019 rendered by the Hon'ble Supreme Court in the case of Raghwendra Sharan Singh v. Ram Prasanna Singh in Civil Appeal No.2960 of 2019;

2. Decision of this Court rendered in the case of Ramanbhai Shamalbhai Patel v. Ravjibhai Motibhai Patel, reported in 2015(1)GLR 494;

3. Decision rendered by Delhi High Court in the case of Amrit Kaur v. Sarabjeet Singh, reported in (2008) 153 DLT 392;

4. Decision dated 02.09.2016 of this Court rendered in the case of Heirs of Decd. Maniben D/o. Naranbhai Ishvarbhai and Wd/o Kantilal Nathalal Patel v. Heirs of Decd. Dwarkabhai Naranbhai Ishvarbhai in Second Appeal No.109 of 2016;

5. Decision dated 06.10.2017 of this Court rendered in the case of Kailashben Mathurbhai Patel v. Gandabhai Mathurbhai Patel in First Appeal No.3168 of 2017;

6. Decision rendered by the Hon'ble Supreme Court in the case of Darshan Singh and Ors. v. Gujjar Singh, reported in AIR 2002 SC 606;

7. Decision of this Court rendered in the case of Mansingbhai Laxmanbhai Halpati v. Shantaben Laxmanbhai Halpati, reported in AIR 2018 CC 2666.

7. On the other hand, learned advocate Mr.

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Chauhan appearing for the opponent No.1 - original plaintiff has opposed this application and referred the reasoning recorded by the trial Court while rejecting the application filed by the present applicants. It is submitted that the question of limitation is not only a pure question of law but it is a mixed question of law and fact. It is further submitted that whether the plaintiff is having her share in the suit properties or not and she is having any right, title or interest in the suit properties can be decided during the course of trial and without adducing the evidence, such question cannot be decided at this stage and therefore the trial Court has rightly rejected the application filed by the present applicants. It is further submitted that plaintiff has clearly stated in the plaint about the cause of action and also stated when the plaintiff came to know about entries made in the revenue record. It is further submitted that relinquishment deed is not registered and therefore such a document is not admissible in evidence. Even no consideration has been given by the applicants to the plaintiff at the time of so-called relinquishment of rights by the plaintiff. It is, therefore, urged that when no error is committed by the trial Court while rejecting the application filed by the applicants, this Court may not exercise revisional jurisdiction in favour of the applicants.

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8. Learned advocate for the respondent No.1 - plaintiff has placed reliance upon the following decisions rendered by the Hon'ble Supreme Court.

1. In the case of Yellapu Uma Maheswari v. Buddha Jagadheeswararao, reported in 2015(16) SCC 787;

2. In the case of Urvashiben v.

Krishnakant Manuprasad Trivedi, reported in 2019(13) SCC 372;

9. Having heard the learned advocates appearing for the parties and having gone through the material placed on record, it would emerge that plaintiff has filed Regular Civil Suit No.482 of 2011 before the concerned Civil Court for declaration in which it is prayed that it may be declared that plaintiff is having share in the suit property and plaintiff has also prayed for partition decree. It is not in dispute that predecessor of the parties died on 30.10.1987 and the plaintiff and defendants are the legal heirs of deceased Naranbhai Ramdas Patel. It is also not in dispute that entry No.2576 came to be mutated in revenue record whereby names of the parties were entered in the revenue record and thereafter entry No.2577 came to be mutated whereby the plaintiff and other sisters relinquished their rights in the suit properties. The said entries were effected on 03.11.1987. Thereafter, the plaintiff field RTS Appeal Nos. 54 of 1990 and 60 of 1990 challenging the mutation entry No.2577. Plaintiff has specifically stated in the plaint itself that the Deputy Collector rejected the said appeals by

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directing the plaintiff to file a civil suit before the competent civil Court so that her right can be determined by the civil Court. It is also not in dispute that thereafter a civil suit has been filed in the year 2011 i.e. after a period of almost 18 years from the date of passing of the order by the Deputy Collector.

10. At this stage, this Court would like to refer to the decisions upon which reliance is placed by learned advocate for the applicants. In the case of Raghwendra Sharan Singh (supra), the Hon'ble Supreme Court has observed as under:

"28. Applying the law laid down by this Court in the aforesaid decisions on exercise of powers under Order 7 Rule 11 of the CPC to the facts of the case in hand and the averments in the plaint, we are of the opinion that both the Courts below have materially erred in not rejecting the plaint in exercise of powers under Order 7 Rule 11 of the CPC. It is required to be noted that it is not in dispute that the gift deed was executed by the original plaintiff himself along with his brother. The deed of gift was a registered gift deed. The execution of the gift deed is not disputed by the plaintiff. It is the case of the plaintiff that the gift deed was a showy deed of gift and therefore the same is not binding on him. However, it is required to be noted that for approximately 22 years, neither the plaintiff nor his brother (who died on 15.12.2002) claimed at any point of time that the gift deed was showy deed of gift. One of the executants of the gift deed - brother of the plaintiff during his lifetime never claimed that the gift deed was a showy deed of gift. It was the appellant herein-

original defendant who filed the suit in the

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year 2001 for partition and the said suit was filed against his brothers to which the plaintiff was joined as defendant No. 10. It appears that the summon of the suit filed by the defendant being T.S. (Partition) Suit No. 203 of 2001 was served upon the defendant No.10 - plaintiff herein in the year 2001 itself. Despite the same, he instituted the present suit in the year 2003. Even from the averments in the plaint, it appears that during these 22 years i.e. the period from 1981 till 2001/2003, the suit property was mortgaged by the appellant herein-original defendant and the mortgage deed was executed by the defendant. Therefore, considering the averments in the plaint and the bundle of facts stated in the plaint, we are of the opinion that by clever drafting the plaintiff has tried to bring the suit within the period of limitation which, otherwise, is barred by law of limitation. Therefore, considering the decisions of this Court in the case of T. Arivandandam (supra) and others, as stated above, and as the suit is clearly barred by law of limitation, the plaint is required to be rejected in exercise of powers under Order 7 Rule 11 of the CPC.

29. At this stage, it is required to be noted that, as such, the plaintiff has never prayed for any declaration to set aside the gift deed. We are of the opinion that such a prayer is not asked cleverly. If such a prayer would have been asked, in that case, the suit can be said to be clearly barred by limitation considering Article 59 of the Limitation Act and, therefore, only a declaration is sought to get out of the provisions of the Limitation Act, more particularly, Article 59 of the Limitation Act. The aforesaid aspect has also not been considered by the High Court as well as the learned trial Court.

30. Now, so far as the application on behalf of the original plaintiff and even the observations made by the learned trial Court as well as the High Court that the question with respect to the limitation is a mixed

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question of law and facts, which can be decided only after the parties lead the evidence is concerned, as observed and held by this Court in the cases of Sham Lal alias Kuldip (supra); N.V. Srinivas Murthy (supra) as well as in the case of Ram Prakash Gupta (supra), considering the averments in the plaint if it is found that the suit is clearly barred by law of limitation, the same can be rejected in exercise of powers under Order 7 Rule 11(d) of the CPC."

10.1 In the case of Ramanbhai Shamalbhai Patel (supra), this Court has observed in para 3.3, 7, 7.1 to 7.4 and 8 as under:

"3.3 Initially the trial court framed the following issues at Exhibit 12 (1) Whether plaintiffs prove that they got 1/4 share in the property of deceased Motibhai Lallubhai?; (2) Whether plaintiffs prove that properties described in para four was to be distributed after death of Motibhai Lallubhai in equal shares amongst his heirs?; (3) Whether plaintiffs prove that the alleged settlement took place between them and defendants in the year 1974?; (4) Whether defendants prove that they got S.No.367 under Tenancy Act?; (5) Whether suit is bad for misjoinder of parties? If yes, what is the effect?; (5A) Whether defts. prove that the land admeasuring 0A-13 g. of S.No. 189 and 0A-12 g. of S.No.302 got by deft. No.3 as a tenant?; (5B) Whether defendants prove that open gabhan of 9254 ft. No.208 is of ownership of deft.No.2?; (5C) Whether suit is time barred? If yes, what is its effect? and (6) Whether plaintiffs are entitled to reliefs sought for?

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7. Learned advocate for the appellants wanted to contend that since for partition suit, no

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period of limitation is prescribed under the Limitation Act, 1963, the plaintiffs' suit could not be held as time barred and he could file a suit any any time. In order to further this contention, learned advocate relied on decision of the Supreme Court in Vidya Devi (supra) and Govindamaal (supra) in which Vidya Devi (supra) was referred to. In decision of Vidya Devi (supra), the Apex Court observed that the legislature has not prescribed any period of limitation for filing a suit for partition because there is always a running cause of action for seeking partition by one of the cosharers if and when he decides not to keep his share joint with other co-sharers. It observed that therefore a time from which such period would commence could not have been provided possibly by the legislature. It then observed that, it did not mean that a co-

sharer who is arrayed as a defendant in the suit cannot raise the plea of adverse possession against the co-sharer who has prayed for partition of his share in the joint property. In Govindamaal (supra), what was held was that a co-sharer giving notice claiming partition of the suit properties and claiming possession but thereafter did not pursue would not be sufficient to show that he had lost his right by adverse possession.

7.1 The decisions relied on by learned advocate for the appellants was referable to the cause of action in relation to a partition suit. The Apex Court did not rule that partition suit was not subjected any limitation period. The accrual of cause of action is decisive. In Krishna Pillai Rajasekharan Nair (dead) by LRs. Vs Padmanabha Pillai (Dead) by LRs. [(2004) 12 SCC 754] the Supreme Court pertinently observed that for a suit for partition, starting point of limitation is-when right to sue accrues, that is plaintiffs have notice of their entitlement to partition being denied.

7.2 In Raghunath Das Vs Gokal Chand [AIR 1958

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SC 857] the Supreme Court held that in respect of a suit by an heir against another heir to recover his share of movable estate of a deceased person is not one for specific movable property wrongfully taken such as is contemplated by Article 49, but is governed by Article 120 of the Limitation Act, 1908 (corresponding to Article 113 of 1963 Act). The Court observed that such a suit was a suit for partition and held,

"The substance of the plaintiff's claims in both cases is for separating his share out of the estate and for allotment and delivery to him of his share so separated. In short such a suit is nothing but a suit for partition or division of the movable properties held jointly or as tenants- incommon by the parties and there being no specific Article applicable to such a suit it must be governed by Art. 120."

7.3 The contention that there is no limitation for partition suit thus rests here being without any substance. In this case as the cause of action accrued in the year 1968, the plaintiffs' partition suit was subjected to three years period of limitation under Article 113 of the Limitation Act and Section 6 read with Section 8 of the Limitation Act would apply.

7.4 At one stage a feeble attempt was made even to contend that the suit in question was not a partition suit. This contention appeared to have been raised in the context of alternative submission made by learned advocate for the appellants that the suit of the plaintiffs ought to have been treated as governed under Article 110 of the Limitation Act which submission is dealt with hereinafter. It booked no two opinion, having regard to the pleadings and prayer of the suit of the plaintiffs that the suit was for partition. In Shub Karan Bubna alias Shub Karan Vs Sita Saran Bubna and others [(2009) 9 SCC 689], the Supreme Court observed that partition is a redistribution or adjustment of pre-existing rights amongst co- owners/co-parceners, resulting in a division of lands or other properties jointly held by them into different lots or portions and delivery thereof to

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the respective allottees. The effect of such division is that the joint ownership is terminated and the respective shares vest in them in severally. The Court the explained, "A partition of a property can be only among those having a share or interest in it. A person who does not have a share in such property cannot obviously be a party to a partition. "Separation of share" is a species of "partition". When all co-owners get separated, it is a partition. Separation of share(s) refers to a division where only one or only a few among several coowners/coparceners get separated, and others continue to be joint or continue to hold the remaining property jointly without division by metes and bounds." (Para 8) Even if Article 110 was to Apply"

10.2 In the case of Amrit Kaur (supra), Delhi High Court has observed as under:

"9. It has been held that the object underlying this Article is to afford protection to a member of a joint Hindu family against prejudicial action by the other members of the family behind his back with respect to his interest in the family property. It has been held that this provision, prescribing the period of limitation, and the conditions of its applicability also apply to suits for partition (Radhoba -vs- Aburao AIR 1929 PC

231). It has also been held that "exclusion" is a fact specific circumstance, to be seen in the light of CS (OS) 1574/2006 Page 9 materials on record in every case. However, what should be seen by the court is the intention of the persons so seeking to exclude the plaintiff, from the enjoyment of his (or her) share (Haresh -vs- Hardevi 1927 (1) ILR 49 All 763; Velayudhan -vs- Velumpi Kunji, ILR 1958 Ker 389 (FB) and Marudhanayagam Pillai - vs- Sola Pillai 77 Mad LW 697). This court too, had applied a similar criteria, when considering whether the suit was time barred, and in the judgment reported as Ramesh Chand V. Tek Chand & Others 115 (2004) DLT 193.

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10. In this case, the plaintiff avers, clearly enough that her entitlement arose upon the death of Desh Raj Singh, in 1988; she further submits that:

"14. That, it appears that, soon after the demise of Sh. Desh Raj Singh and Shri Amrit Pal Singh defendant No.1 became dishonest and in collusion with defendant no.2 started carrying on the family business in an arbitrary manner, detrimental to the interest of HUF."

11. In the averments prior to the above allegations, it was contended that the family properties were acquired by the late father, who had, after becoming advanced of age, left its management to the first CS (OS) 1574/2006 Page 10 defendant, who acted as the Karta. Even if the plaintiff's right to seek partition assuming there to be one, were to be reckoned on the later date indicated, i.e after the death of the late Amrit Pal Singh, (who died in 1993) the suit was time barred, having been filed only in 2006.

12. When the court has to consider whether or not to reject the plaint, it is guided by the principles evolved by the Supreme Court in T. Arivandandam v. T.V. Satyapal and Another, (1977) 4 SCC 467. The Court had held that if on a meaningful, not formal, reading of the plaint it is manifestly vexatious, and meritless, in the sense of not disclosing a clear right to sue, the Court should exercise its power under Order VII Rule 11 of the Code taking care to see that the ground mentioned therein is fulfilled. In Roop Lal Sethi v. Nachhattar Singh Gill, (1982) 3 SCC 487, the Court observed that when the plaint discloses no cause of action, it is obligatory upon the Court to reject it; yet the rule does not justify the rejection of any particular portion of a plaint.

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14. The averments in the plaint are sufficient to deduce that the even according to the plaintiff, she was excluded from enjoyment of the joint family properties immediately after her father's death. The suit is, significantly enough, not accompanied by any document; it does not also rely on any document. No list of documents has been filed in the last two years. Further, the plaintiff does not advert to a single specific date when the defendants were asked to give her the share in properties, and when they refused. The entire case set up is on an oral demand. No notice, of lawyer, or even of the plaintiff, is relied upon. Thus, on a meaningful reading of the plaint, it has to be concluded that the allusion of demand in 2007, when other parts of the suit show that the grievance about the plaintiff's share having arisen in 1988, is an attempt to get over the question of limitation."

10.3. In the case of Kailashben Mathurbhai Patel (supra), this Court has observe in para 6 as under:

"6. In the instant case, it appears that the Suit was filed by the plaintiff, who happened to be the daughter of Mathurbhai, who had expired on 09.09.1983. After his death, the names of the plaintiff and her brothers were entered in the revenue records by the entry No. 1892 on 20.01.1984, however, on the same day, on the basis of the application of plaintiff relinquishing her share in the suit land came to be made, and another entry No. 1893 came to be mutated, whereby her name was deleted from the revenue record. The said entry was sought to be challenged by the plaintiff after 32 years by filing the Suit in the year 2016 alleging that she had not made such application nor had put her signatures on the said application. There is no explanation coming forth as to why the said entry was not challenged since 1984 till 2016. That Apart,

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during this period the Suit lands had changed hands from time to time, and the sale deeds in respect of the suit lands came to be executed by the different defendants as stated in the plaint itself since 1995 till 2010, which remained challenged at the instance of the plaintiff. The plaintiff had remained silent in the plaint as to when she came to know about the said sale deeds, which otherwise were registered sale deeds, and in respect of which the revenue entries were also made and certified by the concerned revenue authorities. Hence, from the plain reading of the plaint itself, it appears that the suit filed in the year 2016 challenging the revenue entries made in the year 1984 and challenging the sale deeds executed since 1995, was clearly barred by law of limitation. There is some substance in the submission of Mr. Patel that the cause of action having been stated in the plaint, it could not be said that no cause of action was disclosed in the plaint. However, since the Court is of the opinion that the plaint deserves to be rejected under Order VII, Rule 11(d), the Suit being clearly barred under the law of limitation, the Court is not inclined to interfere with the impugned order passed by the trial Court."

10.4. In the case of Darshan Singh (supra), the Hon'ble Supreme Court has observed in para 9 and 10 as under:

"9. In our view, the correct legal position is that possession of a property belonging to several co-sharers by one co-sharer shall be deemed that he possess the property on behalf of the other co- sharers unless there has been a clear ouster by denying the title of other co-sharers and mutation in the revenue record in the name of one co-sharer would not amount to ouster unless there is a clear declaration that title of the other co-sharers was denied.

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10. After the death of Hira Singh, one collateral Smt. Har Kaur got her name mutated and took possession, which was questioned by Rulia Singh. Both the parties were litigating and ultimately the court decided in favour of Rulia Singh, who got possession of the land and his name was mutated in the revenue records. After the death of Rulia Singh, his grandsons the present appellants, also got their names mutated which was challenged unsuccessfully by the plaintiff. Thus, it is proved that present appellants got their names mutated after denying the title of co- laterals of Jagjit Singh, including the present appellant. On these facts, we hold that as names of present appellants were mutated in the revenue record after rejecting the claims of plaintiff and other co- laterals, there was a clear ouster of other co-sharers of Jagjit Singh."

10.5. In the case of Mansingbhai Laxmanbhai Halpati (supra), this Court has observed as under:

"[15] It is evident form the record that an attempt is made by the plaintiff to regenerate the issue which has already become final on the basis of some revenue proceedings. However, it is settled position of law that revenue entries and the proceedings are not determining the title or interest in property or share of a party. It has got only a fiscal value, and therefore, by taking advantage of such revenue proceedings by making smart averments no attempt can be allowed for bringing the suit which is apparently not within the period of limitation, and therefore, it is of no consequence for the plaintiff that some entries were requested to be mutated, and therefore, the knowledge is derived from that which attempt is not generating any confidence nor permitting this Court to satisfied that suit proceedings are well within the period of limitation.

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[16] Keeping in view, the proposition that while exercising jurisdiction at the stage of Order 7 Rule 11, the averments contained in plaint are the real yardstick for it on case in hand if these averments which are made by the plaintiff to be seen. There appears to be a specific knowledge about the historical background of this property and the dealing of it. The original plaintiff who happened to be the grandchild of Dhanjibhai Janujibhai has clearly stated the details of the relevant entries and has brought on the suit the fact of earlier partition by compromise of all the properties which include the suit property has suggested by plaintiff herself. The said compromised partition has already been effected on 20.11.1983 for which a specific entry has also been made being Entry No.2656. It is also appearing from the averments on the plaint that when again a controversy arose with respect to property even the learned mamlatdar has also passed a promulgation entry on 17.11.2009 to which also there reflects a knowledge of the plintiff and these averments, If to be looked into in the context of averments made on page 26E of the present compilation in the middle of it it has been stated by the plaintiff herself that at a relevant point of time when compromise took place and partition took place she was given a misinformation and by inducing that misinformation the property was divested to her. On the basis of these averments, a grievance is tried to be again reagitated of partition for the second time and for that purpose the main relief in the suit is asked to set aside the partition which took place on 20.11.1983 which all throughout operated for almost a period 30 years and suit has been brought in June 2014.

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[20] Keeping the aforesiad circumstances in mind and the background of controversy if the order passed by Courts below if to be looked

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into it appears that the same is passed in an ipsi dixi manner. It appears a casual exercise when such kind of important jurisdiction was to be exercised of Order 7 Rule 11 of CPC the basic object of it is to curb the litigation which ex facie found to be vexatious or untenable, and there is a public policy behind the such powers vested in the Court under Order 7 Rule 11(D). The reason which has been assigned is that a controvercy can be adjudicated only by way of leading evidence is a lame reason in the background of this pecuiler set of circumstances especially when plaintiff has come forward to reagitate the issue after almost a period of 30 years, and therefore, in no case which can be said that order passed by the Courts below is justifiable."

11. This Court also would like to refer to the decisions upon which the reliance is placed by learned advocate for the respondent No.1. In the case of Yellapu Uma Maheswari (supra), the Hon'ble Supreme Court has observed as under:

"15.Section 17(1) (b) of the Registration Act mandates that any document which has the effect of creating and taking away the rights in respect of an immovable property must be registered and Section 49 of the Act imposes bar on the admissibility of an unregistered document and deals with the documents that are required to be registered u/s 17 of the Act."

11.1 In the case of Urvashiben (supra), the Hon'ble Supreme Court has observed as under:

"15. By applying the aforesaid principles in the judgments relied on by Sri Dushyant Dave, learned senior counsel appearing for the respondent, we are of the considered view

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that merits and demerits of the matter cannot be gone into at this stage, while deciding an application filed under O.VII R.11 of the CPC. It is fairly well settled that at this stage only averments in the plaint are to be looked into and from a reading of the averments in the plaint in the case on hand, it cannot be said that suit is barred by limitation. The issue as to when the plaintiff had noticed refusal, is an issue which can be adjudicated after trial. 14 (2009) 5 SCC 462 15 (2006) 5 SCC 658 [email protected] SLP(C)Nos.23062-63/18 Even assuming that there is inordinate delay and laches on the part of the plaintiff, same cannot be a ground for rejection of plaint under O.VII R.11(d) of CPC."

13. From the decisions referred to hereinabove, it is clear that considering the averments made in the plaint, if it is found that the suit is clearly barred by the law of limitation, the same can be rejected in exercise of powers under Order VII, Rule 11(d) of the Code. It can further be said that the basic object of exercising jurisdiction while passing the order under Order VII, Rule 11 of the Code is to curb the litigation which ex facie found to be vexatious or untenable.

14. Keeping in view the aforesaid decisions, if the facts of the present case as discussed hereiabove are carefully examined, it can be said that even as per the case of the plaintiff in the plaint, she challenged the entries which were effected on 03.11.1987 by filing R.T.S. Appeals in the year 1990 before the concerned revenue Authority and the said appeals were rejected by the Deputy Collector

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directing the plaintiff to file a civil suit before the competent civil Court so that her right can be determined by the civil Court. It is undisputed fact that the plaintiff has filed a suit in the year 2011 and therefore it is clearly barred by the limitation. The trial Court has wrongly held that the question with respect to limitation is a mixed question of law and fact and it cannot be decided without adducing evidence by the parties. In the facts of the present case, considering the averments made in the plaint, it is clear that suit is clearly barred by limitation and therefore the plaint can be rejected while exercising powers under Order VII, Rule 11 of the Code. The decisions upon which the reliance is placed by learned advocate for the present opponent - original plaintiff would not render any assistance to him in the facts of the present case.

15. In view of the aforesaid discussion, the application is allowed. Impugned order dated 02.04.2013 passed by the 14th Additional Senior Civil Judge, Vadodara below Exh.13 in Regular Civil Suit No.482 of 2011 is hereby quashed and set aside. Consequently, the plaint of the opponent - original plaintiff is rejected. Rule is made absolute accordingly.

(VIPUL M. PANCHOLI, J) LAVKUMAR J JANI