Gujarat High Court
Ebrahim Dawood Mansoor vs Mohammad Munir Yakub Mansoor L H Of ... on 24 January, 2022
Bench: A.J.Desai
C/FA/3768/2021 JUDGMENT DATED: 24/01/2022
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/FIRST APPEAL NO. 3768 of 2021
With
CIVIL APPLICATION (FOR STAY) NO. 1 of 2021
In R/FIRST APPEAL NO. 3768 of 2021
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE A.J.DESAI Sd/-
and
HONOURABLE MR. JUSTICE ANIRUDDHA P. MAYEE Sd/-
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1 Whether Reporters of Local Papers may be allowed No
to see the judgment ?
2 To be referred to the Reporter or not ? No
3 Whether their Lordships wish to see the fair copy No
of the judgment ?
4 Whether this case involves a substantial question No
of law as to the interpretation of the Constitution
of India or any order made thereunder ?
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EBRAHIM DAWOOD MANSOOR
Versus
MOHAMMAD MUNIR YAKUB MANSOOR L H OF YAKUB EBRAHIM
MANSOOR
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Appearance:
MR TARAK DAMANI(6089) for the Appellant(s) No. 1,2
for the Defendant(s) No. 1,2,3,4,5,6,7,8,9
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CORAM:HONOURABLE MR. JUSTICE A.J.DESAI
and
HONOURABLE MR. JUSTICE ANIRUDDHA P. MAYEE
Date : 24/01/2022
ORAL JUDGMENT
(PER : HONOURABLE MR. JUSTICE A.J.DESAI)
By way of present appeal under Section 96 read with
Order-41 Rule-1 of the Civil Procedure Code, 1908 [hereinafter
referred to as "CPC" for short], the appellants - original plaintiffs
C/FA/3768/2021 JUDGMENT DATED: 24/01/2022
have challenged an order dated 4.10.2021 passed by learned 3 rd
Additional Senior Civil Judge, Surat below application Exh.15 in
Special Civil Suit No.110 of 2019 submitted by the respondent
Nos.6 to 9 under Order-7 Rule-1(d) as well as Order-7 Rule-1(a)
of CPC whereby the said suit has been dismissed on the ground
that the same is barred under the provisions of Limitation Act,
1963.
2. The short facts arise from the record are as under:
2.1 That the present appellants - original plaintiffs through
their Power of Attorney - Nikhilkumar alias Nikhil
Dhansukhbhai Patel had filed a suit being Special Civil Suit
No.110 of 2019 in the Court of learned Principal Senior Civil
Judge, Surat claiming their 40% right on piece of land located at
Survey No.474/3, Block No.775, admeasuring 2124 sq. mts. as
well as for cancellation of registered sale deed dated 25.3.2015
registered at serial No.397 with the office of Sub-Registrar, Surat
executed in favour of the respondent Nos.6 to 9 - original
defendant Nos.6 to 9 by the land owners as well as for
permanent injunction restraining the defendant Nos.6 to 9 from
further transaction.
2.2 It was pleaded in the plaint that the appellants are the
grand children of Bai Halima D/o. Mohammad Fakira and W/o.
Ebrahim Kasam Mansoor, who was the owner of the property in
question. The appellant No.1 was born in India, however,
alongwith his father Dawood Ebrahim Mansoor, he was shifted
to London (U.K.) when he was aged about 14 years, whereas the
appellant No.2 was born in London (U.K.).
C/FA/3768/2021 JUDGMENT DATED: 24/01/2022
2.3 It was further stated in the plaint that since both the
appellants were residing at London (U.K.), after death of their
grandmother Bai Halima, who expired on 15.8.1980, vide entry
No.5059 dated 20.3.1990, names of other legal heirs were
mutated in the revenue record, however, neither name of the
appellants' deceased father nor his legal heirs (appellants) names
were mutated in the revenue record.
2.4 It was further specifically submitted that when the
appellants came to India in the year 2016, they did not verify the
revenue record, however, with the help of Power of Attorney, in
the year 2018, it was found that their names were not mutated
in the revenue record and the property was sold in the year
2015. Having come to know about such transaction, the
aforesaid suit has been filed.
2.5 The respondent Nos.6 to 9 filed an application under
Order-7 Rule11(d) of CPC at Exh.15 in the said suit proceedings
raising contention that the said suit is time barred under the
provisions of Limitation Act, and requested the learned trial
court to reject the plaint. It was contended by the said
respondents that they have purchased the said property by
registered sale deed way back in the year 2015 and to challenge
such transaction, as per Article 58 of the Limitation Act, limit of
3 years is prescribed, which expired in the year 2018, whereas
the suit has been filed in the year 2019, i.e. after a period of
more than 3 years.
2.6 Learned trial court has accepted the said application at
Exh.15 and rejected the plaint holding that the suit is barred by
limitation hence, this appeal.
C/FA/3768/2021 JUDGMENT DATED: 24/01/2022
3. Mr. Tarak Damani, learned advocate for the appellants,
would submit that the learned trial court has committed error
in accepting the application at Exh.15 filed by the respondent
Nos.6 to 9. He would submit that the appellants are the legal
heirs (being grand children of Bai Halima); are entitled for their
share after demise of their father to the extent of 40% and such
share can be claimed at any point of time. He would submit that
as and when the appellants came to know about the said
transaction and non-mutation of their names in the revenue
record, the suit was filed and cause of action to file the suit in
the year 2019 has been explained in detail. He would submit
that the limitation period would start from the date of knowledge
of the fact to the appellants and therefore, when the appellants
came to know about the said transaction through their Power of
Attorney in the year 2018, the suit was filed in the year 2019.
3.1 In support of his submissions, he has relied upon the
decision of the Hon'ble Apex Court in the case of Salim D.
Agboatwala & Ors. v. Shamalji Oddhavji Thakkar & Ors. [AIR
2021 SC 5212]. By relying upon the observations in para-10 of
the said decision, he would submit that the contentions raised in
the plaint are mixed questions of law and facts and therefore, the
learned trial court ought not to have accepted the application at
Exh.15 and ought not to have dismissed the suit. He, therefore,
would submit that the appeal be admitted and the suit be
revived and the learned trial court may be directed to hear and
decide the suit on merits.
4. We have heard learned advocate Mr. Tarak Damani for the
appellants. We have also gone through the order impugned,
C/FA/3768/2021 JUDGMENT DATED: 24/01/2022
documentary evidence, including the plaint produced by the
appellants along with the memo of present appeal.
5. It is an undisputed fact that the entry No.5059 dated
20.3.1990 was mutated in the revenue record with regard to the
disputed property. The names of the legal heirs which were
mutated in the revenue record had sold the property to the
respondent Nos.6 to 9 in the year 2015. We have gone through
the cause of action of filing the suit as well as prayers made in
the suit by which the plaintiffs have prayed for their share to the
tune of 40%. The appellants - original plaintiffs have also filed
the suit for cancellation of the registered sale deed dated
25.3.2015 registered at serial No.397 with the office of Sub-
Registrar, Surat. In paragraph-16 of the plaint, it has been
admitted by the plaintiffs through their Power of Attorney
themselves that they had visited India in the year 2016,
however, did not check the revenue record, otherwise they
themselves could have filed the suit immediately instead of
executing the Power of Attorney to some unknown businessman.
The appellants have failed to produce any documentary evidence
with regard to their frequent visit to India. The Power of Attorney
in favour of Nikhilkumar alias Nikhil Dhansukhbhai Patel has
been executed only on 18.5.2018 who is carrying on business at
Surat city, who, ultimately, filed the suit in the year 2019
challenging the transaction of 2015. The suit had been filed on
18.2.2019, however, as per Article 58 of the Limitation Act, the
period of limitation is of 3 years and when the sale deed (dated
25.3.2015) is registered in the year 2015, the appellants were
supposed to file the suit on or before 24.3.2018 i.e. within period
of 3 years from the date of registration of the sale deed in favour
of the respondent Nos.6 to 9. It also appears from the plaint
C/FA/3768/2021 JUDGMENT DATED: 24/01/2022
itself that father and mother of the appellants had passed away
in the year 1981 and 1998 respectively, but the appellants have
woken up from the slumber only in the year 2019 claiming
certain rights that too through Power of Attorney who is a
businessman which creates doubt about their motives.
5.1 Moreover, the facts of present case are totally different
than the facts of the case relied upon by the learned advocate for
the appellants in case of Salim D. Agboatwala (supra) and
therefore, the same is not applicable in the case on hand.
5.2 It is also pertinent to note that the respondent Nos.6 to 9
after verifying the record, have purchased the property by
registered sale deed and at no point of time any objection by any
of the legal heirs, including the present appellants, were raised.
6. In view of above, we are of the opinion that the learned trial
court has rightly exercised powers under Order-7 Rule-11 of
CPC. In the result, the appeal is summarily dismissed.
In view of disposal of the main appeal, civil application for
stay would not survive. Consequently, civil application also
stands disposed of.
Sd/-
(A.J.DESAI, J)
Sd/-
(ANIRUDDHA P. MAYEE, J.)
KAUSHIK D. CHAUHAN
