Parshottambhai Chhinkumal ... vs Chhotaji Bhagaji Thakor Since ...
2022 Latest Caselaw 88 Guj

      C/FA/2693/2019                              JUDGMENT DATED: 04/01/2022




              IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                       R/FIRST APPEAL NO. 2693 of 2019
                                    With
                 CIVIL APPLICATION (FOR STAY) NO. 1 of 2019
                      In R/FIRST APPEAL NO. 2693 of 2019

FOR APPROVAL AND SIGNATURE:

HONOURABLE MR. JUSTICE B.N. KARIA
==========================================================
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 ?

==========================================================
                 PARSHOTTAMBHAI CHHINKUMAL CHIMNANI
                                 Versus
                CHHOTAJI BHAGAJI THAKOR SINCE DECEASED
==========================================================
Appearance:
MR DIPAK H SINDHI(5710) for the Appellant(s) No. 1
for the Defendant(s) No. 1,2,4
MR. MEHUL SHAH, SR. COUNSEL WITH MR JV VAGHELA(5809) for the
Defendant(s) No. 3
NOTICE SERVED for the Defendant(s) No. 1.1,1.2,1.3,1.4,1.5
==========================================================
     CORAM:HONOURABLE MR. JUSTICE B.N. KARIA
``
                              Date : 04/01/2022

                             ORAL JUDGMENT

Present appellant, who is the original plaintiff before the trial

Court, being aggrieved and dissatisfied with the judgement and order

dated 12th April, 2019 passed by learned Principal Senior Civil

Judge, Gandhinagar below Exh. 56 and 61 in Special Civil Suit No.

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1 of 2016 rejecting the plaint (Suit) of the appellant (plaintiff) by

allowing the application of the defendants below Exhs. 56 and 61

under Order 7 Rule 11 of Code of Civil Procedure, 1908, has

preferred this appeal under Section 96 read with Order XLI of the

Code of Civil Procedure, 1908 (for short "the Act")

Present appellant herein is the original plaintiff and respondent

Nos. 1 to 1/5 herein are the original defendant Nos. 1 to 5 and

respondent Nos. 2 to 4 herein are original defendant Nos.6 to 8 in

the suit being Special Civil Suit No.1 of 2016.

Brief facts for considering the present controversy are

enumerated hereunder:-

1. That 3 agricultural lands situated at District, Sub-

District: Gandhinagar, Moje Village Koteshwar bearing

Survey No.1, admeasuring 0-72-14 sq. mtrs., survey No.

142 admeasuring 1-00-16 sq. mtrs and survey No. 146

admeasuring 0-77-90 sq. mtrs, in total admeasuring 2-

50-20 sq. mtrs. i.e. about 10.75 vigha land (hereinafter

referred to as "the suit property") was originally owned

by Chhotaji Bhagaji in the year 1990 who was the

ancestor of respondent No.1/1 to 1/5, i.e. original

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defendant Nos. 1 to 5. In the year 1990, the suit

property was in the name of Chootaji Bhagaji alone, and

out of his free will, Chootaji Bhagaji had agreed to sale

the suit property to one builder of Ahmedabad namely

Bholabhai Valjibhai Patel by executing one registered

Agreement to Sale with Registration No. 509 dated

5.3.1990 at the rate of Rs.75,000/- per vigha i.e. at total

sale price of Rs.7,87,500/- wherein, Chhotaji Bhagaji

himself and his 4 legal heirs had signed as vendors, and

as per condition No. 6 at page 6 of this Agreement to

Sale, the sale deed was to be executed either within 12

months or within 3 months after getting necessary

permissions for execution of sale deed, however,

Bholabhai could not get necessary permissions for

execution of sale deed till 1994 and therefore, no sale

deed was executed in favour of the purchaser. However,

Bholabhai had paid in advanced Rs.3,33,478/- i.e. 42%

amount towards the sale price to Chhotaji Bhagaji. In

addition to that Chhotaji Bhagaji and his 4 legal heirs

executed one notarized irrecoverable Power of Attorney

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on 5th March, 1990 in connection with the suit property,

in favour of Bholabhai Patel wherein, respondent No.1/1

was also one of the signatory. Thereafter, Bholabhai got

permission for execution of sale deed in the year 1995

and was ready for getting sale deed executed in his

favour, however, till then the price of the suit property

was increased and therefore, Chhotaji Bhagaji had

become dishonest and refused to execute the sale deed.

Hence, Bholabhai filed Special Civil Suit No. 331 of

1995 before the Court of learned Civil Court at

Gandhinagar against Chhotaji Bhagaji. Thereafter, the

responsibility of the suit was handed over to the present

appellant by Chhotaji Bhagaji. Thereafter, sale deed

could not be executed in faovour of the Bholabhai till

the year 1995 and price of the suit was increased.

Thereafter, Chhotaji Bhagaji i.e. the ancestor of

respondent No.1/1 to 1/5 had at new sale price agreed to

sale the suit property to the present appellant at lump

sum sale price of Rs.10,75,000/- with liability of

Chhotaji Bhagaji towards Bholabhai of 42% sale price

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taken by him and any compensation and outcome of suit

filed by said Bholabhai. Chhotaji Bhagaji executed one

registered Agreement to Sale with possession in favour

of the present appellant on 13th November, 1995 and

appellant paid full stamp duty of Rs.1,37,600/- on the

agreement to sale and as per submission of appellant,

physical possession of the suit property was handed over

on 13th November, 1995 in presence of respondent No.

1/1. Thereafter, because of the inflation in the price of

the suit property Chhotaji had become dishonest and did

not execute sale deed in favour of Bholabhai and

executed Agreement to Sale with possession in favour of

the appellant with rights of Bholabhai on 13.11.1995. At

the time of execution of the Agreement to Sale with

possession in favour of the present appellant, Chhotaji

had accepted the Demand Draft No. 000522 of Bank of

Baroda of Rs. 2,75,000/- from the present appellant

towards advance amount of the sale price of the suit

property and the same is mentioned as Rs.8,00,000/-

only which were remaining due to be paid towards the

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sale price. As agreed between the parties, remaining

amount of the sale price was to be paid on or before 31 st

January, 1996. Another main condition was imposed in

the agreement that out of 3 suit properties the biggest

land bearing Survey No. 142 admeasuring 10016 sq.

mtrs. which was given on rent to ONGC from 17 th

March, 1993 to 16th March, 1996 by Chhotaji Bhagaji

and accordingly, he agreed that from 1st January, 1995

onwards, appellant would get the said rent from ONGC.

One of the condition in the agreement was that before

execution of the sale deed in favour of the appellant, it

was duty of the original owner-Chhotaji Bhagaji to get

the rent agreement of ONGC cancelled and to get the

possession of land of Survey No. 142 vacated from

ONGC and vacant possession shall be handed over to

the appellant, till the date of filing of the suit in the year

2016, possession of the ONGC over land of Survey No.

142 was not vacated and no amount of rent was paid to

the present appellant. Respondent No. 1 to 1/5 failed to

fulfill the conditions of the registered Agreement to Sale

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in favour of the appellant, rights of the appellant in

respect of the suit land with possession have remained

alive and in-force till the date of filing of the suit.

Original owner namely Chhotaji Bhagaji had executed

one notarized Power of Attorney of the suit property in

favour of the appellant on 13th November, 1995

authorizing him to get sale deed executed in his favour

and taking over the possession of the suit property. The

appellant was always ready to get Sale Deed of the suit

property executed in his favour, and therefore, the

appellant had issued notice to the original owner

Chhotaji Bhagaji on 18/01/1996 to send all the papers of

the suit property and to get Title Clear Certificate of the

suit property. As per the condition of the registered

Agreement to Sale, Chhotaji Bhagaji could not get the

possession from O.N.G.C. vacated over the land of

Survey No. 142, therefore, the appellant had filed

Special Civil Suit No. 28 of 1996 before the Civil Court

at Gandhinagar against Chhotaji Bhagaji for specific

performance of the Agreement to Sale in favour of the

C/FA/2693/2019 JUDGMENT DATED: 04/01/2022

appellant and further prayed for Court Commission and

injunction order wherein, Court Commission was done

on 25.5.1996 wherein, as per submissions of the

appellant, physical and actual possession of the appellant

over the three suit property was established. Thereafter,

Bholabhai Patel executed one confirmation Agreement

(Sahmati Karar ) on 31.5.1996 in favour of the appellant.

That, during the subsistence of the doubt rights of the

appellant over the suit property and pendency of the

Special Civil Suit No. 28 of 1996, possession of the

ONGC over the land of Survey No. 142 was not vacated

till the year 2003 and therefore, on 1 st December, 2003,

respondent No.1/1 who is also the main member and

head of his family contacted the appellant with broker

of this land transaction namely Kantibhai Aatmaram,

told the appellant by giving promise that the

possession of the O.N.G.C. will be vacated by

31/12/2003 and request the appellant to give Rs.

22,000/- in cash towards the sale price, so that he can

spend the same towards expenditure of getting the

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possession of O.N.G.C. vacated from one of the suit

property bearing Survey No. 142. The appellant paid the

said amount and also gave one cheque No. 033375 of

Bank of Baroda dated 05/01/2004 in the name of Ramaji

Chhotaji i.e. Respondent No. 1/1 of Rs. 7,78,000/-

towards remaining amount of sale price, and that cheque

was given with the understanding that the same shall be

deposited only after the O.N.G.C. vacates it's possession

on 31/03/2003. As sale price of the suit property was

paid by the appellant to Respondent No. 1/1 by cheque

and cash and as per submission of appellant with his

consent and on the basis of Power of Attorney in his

favour dated 13/11/1995 executed Sale Deed registered

at Sr. No. 9091 on 19/12/2003 in his favour of 2 lands of

the suit property bearing Survey No. 1 and 146 at the

sale price of Rs. 2,75,000/-. He further executed another

Sale Deed registered at Sr. No. 9093 on 19/12/2003 on

the basis of Power of Attorney in his favour of 1 land of

the suit property bearing Survey No. 142 at the sale

price of Rs. 8,00,000/-. Respondent No. 1/1 to 1/5

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dishonestly and without the knowledge of the appellant

with the malicious intention, cancelled the registered

Agreement to Sale with Possession executed by their

ancestor Chhotaji Bhagaji on 13/11/1995 by ex-parte

executing registered Cancellation Deed registered at Sr.

No. 9096, without signature of the appellant or photo of

the appellant. In the said Deed of Cancellation, no

address of the appellant of Meghaninagar was given. In

the said cancellation deed, Respondent No. 1 to 5 have

admitted the receipt of Rs. 2,75,000/- from the appellant

by Demand Draft towards the advance money of the sale

price, but the said amount is not returned to the

appellant, and without taking back the physical

possession of the suit property from the appellant, ex-

parte cancellation deed was got registered illegally. It

was wrongly mentioned in this Deed of Cancellation that

the possession of the suit property was with the

respondent No.1/1 to 1/5 from the beginning. On the

date of execution of this Deed of Cancellation the

Special Civil Suit No. 28 of 1996 was pending before

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the Court, respondents have not challenged the

documents/deeds executed in favour of the appellant

before any Court. As per submission of the appellant,

copy of the said Deed of Cancellation was received on

26/10/2015. At the time of filing of the present suit, as

per submission of the appellant, he had no knowledge

about the date of death of Chhotaji Bhagaji. Respondent

No. 1/1 to 1/5 further executed 3 completely illegal and

fraudulent sale deeds in favour of Respondent No. 2 to 4

(i.e. Defendant No. 6 to 8) in connection with the suit

property on 31/12/2003 registered at Sr. No. 698/2004,

699/2004 and 700/2004 for the total lump sum sale price

of Rs. 7,00,000/- received by cash. These 3 sale deeds

have been executed during the pendency of Special Civil

Suit No. 28 of 1996 filed by the appellant. The appellant

had got copies of these 3 sale deeds on 26/10/2015.

However, possession of the suit property was with the

present appellant as it was handed over to him by late

Chhotaji Bhagaji in his life time on 13/11/1995 which

was also confirmed in the report of the Court

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Commission held on 25.5.1996. As such there is no

right, title or interest whatsoever is created in favour of

respondent Nos. 2 to 4, sale deed were executed in their

favour. Present appellant filed Special Civil Suit No. 1

of 2016 with a prayer to pass judgement, order and

decree declaring that the appellant is having direct,

active and physical possession of the suit property

situated at District & Sub-District: Ahmedabad Village:

Koteshwar, and more particularly described by way of

registered Agreement to Sale with possession registered

upon payment of full stamp duty of sale deed at Sr. No.

5203, executed by original owner in favour of the

appellant on 13/11/1995 upon receiving advance money

of Rs. 2,75,000/- by Demand Draft towards sale price,

and after paying the entire due amount of sale price Rs.

8 lakhs had got executed two sale deeds registered at Sr.

No. 9091 and 9093 on 19/12/2003, and on the basis of

the same the appellant has become lawful owner of the

suit property and however, Respondent No. 1/1 to 1/5

have ex-parte cancelled the appellant's registered

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Agreement to Sale with possession by ex-parte

executing Cancellation Deed registered at Sr. No. 9096

without any consent or signature of the appellant and

without returning the consideration amount to him,

prayed to declare such Cancellation Deed as being null-

void and illegal. It was further prayed that three sale

deeds executed in favour of Respondent No. 2 to 4 on

31/12/2003 registered at Sr. No. 698/2004, 699/2004 and

700/2004 for the total consideration of Rs.7,00,000/- in

cash are completely illegal, null and void, and had

prayed for cancellation of such three sale deeds. Further

prayer was made in the suit by the appellant to restrain

the respondents not to forcefully dispossess the

appellant from his direct, active and physical possession

over the suit property and declare that the respondents

or their servants, agents, representatives have no right to

illegally trespass or enter upon the suit property.

Application seeking temporary injunction vide Exhibit-5

was also filed by the appellant. Written statement was

filed by the respondent 1/1 to 1/5 on 11/07/2016, at

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Exhibit No. 17, and the Respondent No. 2 to 4 had also

filed their written statement at exh. 20 on 06/08/2016.

Amended plaint was also filed by the plaintiff against

which respondent No. 1/1 to 1/5 filed their written

statement and injunction application of the appellant on

25.2.2019 at Exh 54. Respondent No. 2 to 4 filed

written statement to the amended plaint and injunction

Application at Exhibit No. 58. Thereafter, Respondent

No. 1/1 to 1/5 filed Application for rejection of plaint

under Order 7 Rule 11 of the Code of Civil Procedure,

1908 on 03/10/2016, at Exhibit No. 25, to which the

appellant filed his reply on 10/01/2017 vide Exhibit -

28; and the Respondent No. 2 to 4 also filed

Application for rejection of plaint under Order 7 Rule 11

of the Code of Civil Procedure, 1908 on 08/02/2017 at

Exhibit No. 29 against which the appellant had filed his

reply on 13/06/2017 at Exhibit - 36. However upon

amendment of the plaint and injunction Application of

the appellant, the respondents withdrew their

applications for rejection of plaint vide Exhibit - 25 and

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29 vide orders dated 25/02/2019 and 13/03/2019

respectively. Thereafter, respondent No. 1/1 to 1/5 had

again filed application for rejection of plaint under Order

7 Rule 11 of the Code of Civil Procedure, 1908 on

25/02/2019, at Exhibit No. 56, against which, reply

was filed by the appellant on 06/03/2019 at Exhibit -

62. Respondent No. 2 to 4 again filed Application for

rejection of plaint under Order 7 Rule 11 of the Code of

Civil Procedure, 1908 at Exh. 61 on 05/03/2019 against

which the appellant filed adoption note on 06/03/2019

vide Exhibit - 63 and requested to treat as reply of

application at Exhibit - 61. After hearing the parties,

Ld. Principal Senior Civil Judge, Gandhinagar was

pleased to allow the applications of the respondents vide

impugned order dated 12/04/2019 passed below Exhibit

- 56 and 61 in Special Civil Suit No. 1 of 2016, whereby

the suit/plaint of the appellant was rejected under Order

VII, Rule 11 of Code of Civil Procedure, 1908.

Heard learned advocate for the appellant and learned advocate

for the respondent.

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Learned advocate appearing for the appellant submits that

previous two applications at Exh. 25 and 29 filed by the respondent

under Order 7 Rule 11 of CPC for rejection of plaint were disposed

of as withdrawn by order dated 25.2.2019 and 23.3.2019.

Thereafter,the respondents once again filed two applications at Exh.

56 and 61 with the same prayer, which were mot maintainable and

barred by res judicata under Section 11 of the Code of Civil

Procedure, 1908. That, trial Court had committed error in allowing

applications at Exh. 56 and 61. That, trial Court has completely

adopted technical approach in allowing the applications of the

respondents rejecting the plaint of the appellant on the very same

grounds, ignoring the averments to the effect that there are triable

issues in the suit of the appellant and same can be decided only after

holding the trial. That, trial Court has committed gross error by

appreciating and considering evidence at the stage of deciding

applications under Order 7 Rule 11 of Code of Civil Procedure, 1908

and thereby, wrongly rejected the plaint of the appellant. That,

consequently findings recorded by the trial Court in para 4 and 4.2

are erroneous because the previous suit being Special Civil Suit No.

28 of 1996 was filed by the appellant for specific performance and

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permanent injunction which was disposed of on 30.12.2010.

However, pending proceedings of that suit of 1996, respondent

No.1/1 to 1/5 illegally sold the suit property to respondent Nos. 2 to

4. That, the said fact has come to the knowledge of the appellant

only after the measurement of suit property by AUDA on 7.10.2015

for T.P.scheme and subsequent quarrel and threats by respondent

Nos. 1/1 to forcibly dispossess the appellant and thereafter, upon

getting 7/12 abstracts and other necessary documents from

23.10.2015 to 26.10.2015. There was no cause of action between the

year 1996 to 2010 for seeking prayers as prayed for in the present

suit which was completely different from the previous suit of the

year 1996 and hence, the trial Court has committed gross error in

holding that the suit of the appellant was barred by res judicata under

Section 11 Explanation - 4 of CPC. That, respondent No.1/1 to 1/5

have ex-parte and without the knowledge, consent or signature of the

appellant have cancelled the registered Agreement to Sale with

possession and that too without returning the consideration amount

or without taking back possession from the appellant and by giving

wrong address of the appellant illegally registered Cancellation Deed

in connivance with the Sub-Registrar and Power of Attorney in

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favour of the appellant was for consideration and with interest in

the suit property, as they did not come to end upon the death of

Principal i.e. original owner. That, trial Court has committed gross

error in recording conclusion in para 5.3 of the impugned judgement

because the Regular Civil Suit No. 271 of 2007 which was filed on

22.6.2007 in connection with many lands of the appellant

village :Koteshwar including the suit properties because of inflation

in the market price land of village: Koteshwar the original owners

were trying to forcibly dispossess the appellant, and therefore, the

appellant had prayed for permanent injunction in that suit and for

limited purpose permanent injunction was sought. That, without

assigning any reasons and without any discussion as to how the suit

of the appellant was barred and under which law it is barred, trial

Court has partly allowed the application preferred by the respondent.

That, suit of the appellant was not barred by res judicata or provision

of the Limitation Act and since because of cause of action had

arisen in the year 2015, the suit was instituted in the year 2016, it

was within limitation, and therefore, also impugned order passed by

the trial Court is required to be quashed and set aside. That, Regular

Civil Suit No. 271 of 2007 was on completely different cause of

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action and that was in connection with all the lands of the appellant

situated at village: Koteshwar including the suit properties, present

respondent No. 2 to 4 were not parties in the aforesaid suit. That,

cause of action for filing present suit was arisen in October, 2015.

There is no question of suit of the appellant being barred by

provision of Order 2 Rule 2 of Code of Civil Procedure, 1908. That,

cause of action for seeking declaration that the appellant has become

lawful owner of the suit property on the basis of two sale deeds

registered at Sr. No. 9091 and 9093 executed on 19/12/2003 in

favour of the appellant and cause of action was arisen only in

October, 2015 when, the Respondent No. 1/1 had threatened to

illegally dispossess the appellant from the suit property, and the

appellant got copies of fresh 7/12 abstracts and came to know about

the Cancellation Deed, and 3 subsequent sale deeds in favour of

Respondent No. 2 to 4 only in October, 2015, there is no question of

making any averments/prayers by seeking amendment in the suit of

1996, and therefore, the present suit of the appellant was filed well

within limitation and the same was not barred by Article 58 of the

Limitation Act. That, present suit was filed on 01/01/2016 for the

cause of action which was arisen in October, 2015 and cause of

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action for instituting the present suit was different from the suit of

2007 wherein, the appellant had prayed for permanent injunction in

connection with all his lands at village: Koteshwar. Hence, it was

requested by learned advocate for the appellant to quash and set

aside the impugned judgement and order passed below Exh. 56 and

61 rejecting the plaint of the appellant by allowing this appeal .

Learned advocate appearing for the respondent has

vehemently opposed the submissions made by learned advocate for

the appellant and submitted that agreement to sale, registered sale

deed was to be executed as per condition on or before 31 st January,

1996 in favour of the appellant. That, under Article 54 of the

Limitation Act for specific performance of the agreement, three

years limitation period is prescribed. That, under Article 54 of the

Limitation Act, suit was required to be filed by the appellant within

three years for specific performance from 31 st January, 1996 while

suit was filed by the appellant in the year 2016 and was clearly

barred by provisions of the Limitation Act. Referring to Notice at

mark 3/5 issued by the appellant, it is submitted that this notice was

in connection with registered agreement to sale executed on 13 th

November, 1995 requesting to forward the relevant documents. That,

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on issuance of notice dated 18th January, 1996, father of the

respondent namely Chhotaji Bhagaji Thakore refused to supply

relevant documents because of cause of action for filing the suit

may said to be arisen . That, admittedly, within three years from

1996, no suit was filed by the appellant. Hence, trial Court has

rightly rejected the plaint on application submitted by defendant.

That, appellant himself executed two registered documents at Sr.No.

9091 marked 3/10 and Sr.No. 9093 dated 20th September, 2004

before the Office of Sub-Registrar Gandhinagar. Thereby, plaintiff

in the present suit could have been prayed in Special Civil Suit No.

28 of 1996 but no declaration was sought by the plaintiff that he is

owner of the registered sale deed No. 9091 and 9093 dated 19 th

December, 2003. In Special Civil Suit No. 28 of 1996 filed by the

appellant for specific performance in connection with the agreement

to sale and permanent injunction was dismissed by order dated 13 th

December, 2010 and no appeal was preferred by the present

appellant. That, order dated 13th December, 2010 was binding out to

the appellant. That, copy of order passed in Special Civil Suit No. 28

of 1996 was produced by the appellant at mark 3/17 in the suit. That,

in Regular Civil Suit No. 271 of 2007 preferred by the appellant, no

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relief was sought by the present appellant and therefore, also suit

was clearly barred by Article 58 of the Limitation Act. Trial Court

has committed no error in rejecting the plaint, on request being

made by respondent herein. Hence, it was requested by learned

advocate for the respondent to dismiss the present Appeal and

confirm the impugned judgenent and order passed by the trial Court.

Having heard learned advocates appearing for the respective

parties, perused the entire record of the litigation from the beginning

between the parties and perused the impugned order passed by the

Court below rejecting the plaint . Application under Order 7 Rule 11

of Code of Civil Procedure, 1908, below Exh. 56 and 61 in Special

Civil Suit No. 1 of 2016 , this Court would like to refer Order 7 Rule

11 of the Code of Civil Procedure which reads as follows:-

"11. Rejection of plaint.- The plaint shall be rejected in the

following cases:-

(a) where it does not disclose a cause of action;

(b) where the relief claimed is undervalued, and the plaintiff, on being required by the Court to correct the valuation within a time to be fixed by the Court, fails to do so;

(c) where the relief claimed is properly valued but the plaint is written upon paper insufficiently stamped, and the plaintiff, on being required by the Court to supply the requisite stamp-paper within a time to be fixed by the Court, fails to do so;

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(d) where the suit appears from the statement in the plaint to be barred by any law;

(e) where it is not filed in duplicate;

(f) where the plaintiff fails to comply with the provisions of rule 9:

Provided that the time fixed by the Court for the correction of the valuation or supplying of the requisite stamp-paper shall not be extended unless the Court, for reasons to be recorded, is satisfied that the plaintiff was prevented by any cause of an exceptional nature for correcting the valuation or supplying the requisite stamp- paper, as the case may be, within the time fixed by the Court and that refusal to extend such time would cause grave injustice to the plaintiff.

What is important to remember is that the provision refers to the "plaint" which necessarily means the plaint as a whole. It is only where the plaint as a whole does not disclose a cause of action that Order VII Rule 11 springs into being and interdicts a suit from proceeding.

It is well settled law that the averments in the plaint needs to

be looked into for deciding an application under Order 7 Rule 11 of

CPC. At the stage of deciding the application under Order 7 Rule 11

of CPC, pleadings have to be construed as they stood without

addition or subtraction of words or a change of its apparent

grammatical sense. Trial court must remember that if on a

meaningful and not formal reading of the plaint it is manifestly

vexatious and meritless in the sense of not disclosing a clear right to

sue, it should exercise the power under Order 7 Rule 11 of the Code

taking care to see that the ground mentioned therein is fulfilled.

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There is no absolute proposition that a plaint can never be rejected

under Order 7 Rule 11 of CPC on the basis of the bar of limitation.

This will depend upon the facts and circumstances of each case

where the issue of limitation is a mixed question of law and fact or

where a conclusion is not discernible from the statements in the

plaint that the suit is barred by limitation, the plaint cannot be

rejected by resort to Order 7 Rule 11 (d) of CPC.

As per the averments made by the appellant in the suit,

appellant came into knowledge of the transferring the suit property

on 25th April, 2015 by 3 registered sale deed vide Sr. No.

698/2004, 699/2004 and 700/2004 when he received a copy. It is

also averred by the appellant in the suit that Special Civil Suit No.

28 of 1996 filed by him was dismissed in absence of his advocate on

30th December, 2010. Copy of the order passed in Special Civil Suit

No. 28 of 1996 dated 30thDecember, 2010 was produced on record.

From the record, it appears that appellant was aware with the fact

from 2009 that the suit property was transferred to defendant No.6 to

8, no prayer was made by present appellant in previous suit filed by

him nor 3 sale deeds executed in favour of the defendant No. 6 to 8

were challenged by the present appellant. Copy of the plaint of

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Regular Civil Suit No. 271 of 2007 was produced on record by the

appellant at mark 3/15 filed on 22nd June, 2007. It was averred in the

aforesaid suit that defendant No.1 had cancelled agreement to sale

executed in favour of the appellant on 13.11.1995 and sale deed was

executed in favour of third party. It was within the knowledge of the

plaintiff that Agreement to Sale dated 13.11.1995 was cancelled

and sale deed was executed by defendant No.1 in favour of

defendant No.6 to 8 . This fact was known to the plaintiff, when

Regular Civil Suit No. 271 of 2007 was filed by the appellant. If we

consider the prayer made in para 15 of the present suit, appellant

has accepted that at the time of filing present suit i.e. Special Civil

Suit No. 1 of 2016, Regular Civil Suit No. 271 of 2007 was pending

and next date was fixed on 30 th January, 2016. As per averments

made in the plaint, prayer was made by the original owner of the

land in respect of the possession and therefore, Regular Civil Suit

No. 271 of 2007 was filed by the appellant, cause of action was

started as per averments made in the plaint since 2007 and prayer

was made against defendant Nos. 1 to 5 restraining them to enter

into the suit property illegally. The same prayer could have been

made by the appellant by joining respondent Nos. 6 to 8 in the

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previous suit i.e. Regular Civil Suit No. 271 of 2007 but no such

relief was sought by the appellant in the previous suit. Two

documents No. 9091 & 9093 were duly registered by the appellant

himself in his favour on the basis of Power of Attorney dated

19.12.2003, at that time, in Special Civil Suit No. 28 of 1996, these

two documents were registered at Sr.No. 9091 & 9093. Dispute

between appellant and defendant Nos. 1 to 5 was pending. No

prayer was sought by the plaintiff declaring him that he is lawful

owner of the suit property on the basis of two sale deeds executed in

his favour i.e. 9091 and 9093, and therefore, also suit was clearly

barred under Article 58 of the Limitation Act. On 31 st December,

2003, defendant Nos. 1 to 5 transferred the suit property in favour of

defendant Nos. 6 to 8 by registered sale deed, Sr. no. 698/2004,

699/2004 and 700/2004 which were prayed to be held illegal and

cancelled. These three registered sale deed were executed on

31.12.2003 and prayer was made by the appellant by filing

subsequent suit in the year 2016. Considering the averments made

in the plaint by the present appellant in the suit of 2016, it was

clearly barred by Article 58 of the Limitation Act. Another relief

prayed for in the present suit by the present appellant could have

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been prayed by the appellant in the previous suit filed in the year

2007 also. Only limited prayer was made against defendant Nos. 1 to

5 in Regular Civil Suit No. 271 of 2007. No prayer was made by the

appellant for joining defendant Nos. 6 to 8 in the previous suit i.e.

Regular Civil Suit No. 271 of 2007. It appears from the record that

after framing the issues by the Court and recording the evidence of

the plaintiff as well as defendants and hearing of the parties, Special

Civil Suit No. 28 of 1996 was dismissed along with the application

for interim injunction by the Court on 30 th December, 2010.

Appellant has produced decree passed by the Court below in Special

Civil Suit No. 28 of 1996 at mark 3/17. Copy of the plaint of

Regular Civil Suit No. 271 of 2007 was also produced on record at

mark 3/15. Certain observations were made by the trial Court in

respect of contentions raised by the respondent Nos. 6 to 8 and were

not complied while passing impugned order dated 12 th April, 2019

which was not disturbed by this Court.

Moreover, final conclusion arrived at by the Court below that

suit was barred under Article 58 of the Limitation Act and rejecting

the plaint under Order 7 Rule 11(d) of CPC, cannot said to be illegal

or erroneous. Hence, considering the record of the case and

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submissions, this Court deems it not find any substance in the prayer

made by the present appellant to disturb the findings arrived at by

the trial Court accepting certain observations of the submissions

made by defendant Nos. 6 to 8. Hence, this appeal is hereby ordered

to be dismissed. Notice is discharged.

(B.N. KARIA, J)

ORDER IN CIVIL APPLICATION NO. 1 of 2019

In view of the order passed in the main matter i.e. First Appeal

No. 2693 of 2019, this application does not survive and stands

disposed of accordingly.

(B.N. KARIA, J) BEENA SHAH