Gujarat High Court
Lh Of Decd Kiranbhai Motibhai ... vs Suraj Co Operative Housing And ... on 6 May, 2022
Bench: A.J.Desai
C/FA/335/2022 CAV JUDGMENT DATED: 06/05/2022
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/FIRST APPEAL NO.335 of 2022
With
CIVIL APPLICATION (FOR STAY) NO. 1 of 2022
In
R/FIRST APPEAL NO.335 of 2022
With
R/FIRST APPEAL NO.356 of 2022
With
CIVIL APPLICATION (FOR STAY) NO. 1 of 2022
In
R/FIRST APPEAL NO.356 of 2022
FOR APPROVAL AND SIGNATURE :
HONOURABLE MR. JUSTICE A. J. DESAI Sd/-
and
HONOURABLE MR. JUSTICE ANIRUDDHA P. MAYEE Sd/-
=========================================
1. Whether Reporters of Local Papers may be NO
allowed to see the judgment ?
2. To be referred to the Reporter or not ? NO
3. Whether their Lordships wish to see the fair NO
copy of the judgment ?
4. Whether this case involves a substantial NO
question of law as to the interpretation of the
constitution of India, 1950 or any order made
thereunder ?
=========================================
LH OF DECD KIRANBHAI MOTIBHAI PATEL
Versus
SURAJ CO OPERATIVE HOUSING AND COMMERCIAL SOCIETY LTD
=========================================
Appearance :
MR SHALIN MEHTA, SENIOR COUNSEL ASSISTED BY MR ROHAN A SHAH
C/FA/335/2022 CAV JUDGMENT DATED: 06/05/2022
AND RUSHABH H SHAH for the Appellants.
for the Defendant Nos.2,3,4,5
MR AS VAKIL for the Defendant No.1.
=========================================
CORAM:HONOURABLE MR. JUSTICE A.J.DESAI
and
HONOURABLE MR. JUSTICE ANIRUDDHA P.
MAYEE
Date : 06/05/2022
(PER : HONOURABLE MR. JUSTICE A. J. DESAI)
1. These two appeals have been filed by the Appellants -
original plaintiffs under Section 96 of the Code of Civil Procedure,
1908. Out of these two above referred First Appeals, First Appeal
No.335 of 2022 has arisen from the judgment and decree dated
10.1.2022 passed by learned City Civil Judge, Court No.4,
Ahmedabad below application Exh.103 in Civil Suit No.1786 of
2005. The said application Exh.103 was filed by the original
defendant No.1 - respondent No.1 herein under Order VII, Rule 11
(d) of the Code of Civil Procedure, 1908 (hereinafter referred to as
'CPC') requesting the Court to reject the plaint on the ground that
the suit is barred by the law of limitation and by the impugned
order, the said application came to be allowed and the plaint was
ordered to be rejected.
Whereas, First Appeal No.356 of 2022 has arisen from
the judgment and decree dated 10.1.2022 passed by the learned
City Civil Judge, Court No.4, Ahmedabad below application Exh.107
in Civil Suit No.1785 of 2005. The said application Exh.107 was
filed by the original defendant No.1 - respondent No.1 herein under
Order VII, Rule 11 (d) of the Code of Civil Procedure, 1908
(hereinafter referred to as 'CPC') requesting the Court to reject the
plaint on the ground that the suit is barred by the law of limitation
C/FA/335/2022 CAV JUDGMENT DATED: 06/05/2022
and by the impugned judgment and decree, the said application
came to be allowed and the plaint was ordered to be rejected.
2. First Appeal No.356 of 2022 could have been decided
by learned Single Judge considering the pecuniary jurisdiction
whereas First Appeal No.335 of 2002 is required to be decided by
the Division Bench. However, since the suit property is the same
and the contentions raised by both the parties in the suits as well
as applications Exh.103 and 107 are also same and since both the
said applications have been decided by the learned Judge, City Civil
Court No.4, Ahmedabad on the same day and as per the request
made by learned advocates appearing for the respective parties in
the present appeals to hear both the appeals together, an order
was passed by this Court to list both the First Appeals together.
Accordingly, both the appeals were heard together and are being
disposed of by this common judgment and order.
3. The case put forward by the appellant of both the
appeals i.e. Legal Heirs of deceased Dr. Kiranbhai Motibhai Patel
and Sarojben Kiranbhai Patel widow of deceased Dr. Kiranbhai
Motibhai Patel in both the suits are as under :-
3.1 That an immovable property comprising of land bearing
Revenue Survey No.58/7/2 bearing Final Plot No.431 paiki of Town
Planning Scheme No.21 admeasuring 5261 Sq. Mts. (6292 Sq. Yds.)
situated at Chhadavad, Tal. City, Dist. Ahmedabad having a
constructed house thereupon belonged to the original plaintiff Dr.
Kiran Motibhai Patel (now deceased whose legal heirs have already
been brought on record before the learned Trial Court itself), and
his two brothers, namely, Dr. Sushrut Motibhai Patel and
Hematbhai Motibhai Patel and is a joint property. By a written
C/FA/335/2022 CAV JUDGMENT DATED: 06/05/2022
agreement dated 14.8.1970, it was decided between the three
brothers that two brothers i.e. Dr. Sushrut Motibhai Patel and Dr.
Kiran Motibhai Patel had equal share in the suit property, whereas
it is the case of the appellant - original plaintiff i.e. Sarojben, wife
of Kiranbhai Patel before the learned Trial Court that she had
become absolute owner of the part of suit property (800 Sq. Yds.)
because her father-in-law had bequeathed this part of the property
to her.
3.2 It is further the case of the appellants - original
plaintiffs that some disputes were going on with regard to the
property in question between the brothers i.e. Dr. Kiran Motibhai
Patel and Dr. Sushrut Motibhai Patel. However, the same was
settled and both of them have decided to sell the entire property in
question. It is further the case of the appellant that since he was
residing in USA with his family, he executed a Power of Attorney on
23.12.1994 in favour of respondent No.5 - Rameshbhai Ravjibhai
Patel in respect of the suit property who happens to be his brother-
in-law (plaintiff's sister's husband). It is also the case of the
appellant that the Power of Attorney was of limited nature and that
there was no authority given to respondent No.5 to enter into an
agreement with the respondent No.4. Similar is the case of the
appellant - Sarojben Kiranbhai Patel in the other suit.
3.3 It is further the case of the appellant - original plaintiff
that his brother i.e. Dr. Sushrut Patel agree to sell his half share
from the suit property for a consideration of Rs.3.70 Crores
(Rupees Three Crores Seventy Lacs Only) in favour of defendant
No.4 and Banakhat dated 30.5.1996 to the said effect was executed
between Dr. Sushrut Patel and defendant No.4 which was
registered with Sub-Registrar office at Serial No.1965. It is further
C/FA/335/2022 CAV JUDGMENT DATED: 06/05/2022
the case of the appellants that all the defendants (defendant No.5
as Power of Attorney of the plaintiffs) in connivance with each
other entered into registered agreement on 18.5.1996 in favour of
defendant Nos.2 and 3. By the said agreement dated 18.5.1996, an
understanding was arrived at to treat respondent Nos.2 and 3 as
Agents of plaintiff to negotiate and procure purchasers in respect
of the suit property on "AS IS WHERE IS BASIS" including a
consideration of Rs.1.70 Crores (which also included Rs.20 Lacs
received by plaintiff - Dr. Kiranbhai Patel under the prior
agreement dated 24.7.1995) and in the said document, the
defendant No.5 has signed on behalf of the appellant as Power of
Attorney. Whereas in Civil Suit No.1785 of 2005, as per the case of
the plaintiff - Sarojben Patel, total consideration was Rs.30 Lacs
and only an amount of Rs.2 Lacs was deposited in the account of
plaintiff.
3.4 It is further the case of the plaintiff that having found
some doubts about the conduct of the defendants including their
Power of Attorney, the plaintiff issued notice dated 22.2.1999 to
defendant No.5 asking him not to act as per the Power of Attorney
dated 23.12.1994. A public notice in two daily newspapers i.e.
Gujarat Samachar and Times of India was issued on 5.3.1999 to
defendant Nos.2 and 3 cancelling the registered agreement dated
30.5.1996. In response to the said public notice, an evasive reply
was given by the defendant No.1 Society. It is further the case of
the plaintiffs that on 6.7.2000, registered sale deed was executed
by defendant No.5 as Power of Attorney of the plaintiffs in favour of
defendant No.1 - Society in respect of the suit property. It is
further the case of the plaintiff that when the plaintiff came to
know that their Power of Attorney had executed the Sale Deed
dated 6.7.2000 in favour of defendant No.1 Society in respect of
C/FA/335/2022 CAV JUDGMENT DATED: 06/05/2022
the suit property, the plaintiffs filed the aforementioned suits on
10.10.2005 seeking various reliefs. It was prayed that the Sale
Deed which was executed in 2000 is void-ab-initio, illegal,
unauthorized and the suit property has been transferred without
consideration and hence, registered Sale Deed dated 6.7.2000
executed in favour of defendant No.1 Society be cancelled since the
Power of Attorney was cancelled on 22.2.1999. It is also further
prayed in the suit that the defendants have taken possession of the
property without any right, title or interest and hence, the
defendants may be declared as tress-passers and appropriate relief
may be passed. It is also further prayed that since the house
constructed on the suit property was demolished, the plaintiff
would be entitled to the damages of Rs.20 Lacs qua his portion of
the suit property.
3.5 Along with the suit, an application under Order XXXIX
of CPC seeking temporary injunction was also filed. The learned
Judge, City Civil Court No.2, Ahmedabad vide order dated
29.6.2011 passed below notice of motion applications Exh.6/7 in
Civil Suit No.1785 of 2005 and directed the parties to maintain
status-quo with regard to the suit property till the final disposal of
the suit.
3.6 Written statements have been filed by the defendants
denying the averments made in the plaint. The suits remained
pending for hearing upto 2021.
3.7 The defendant No.1 - Society on 16.10.2021 filed
applications Exh.103 and 107 respectively in both the suits i.e. Civil
Suit No.1786 and 1785 of 2005 under Order VII, Rule 11 (d) of the
CPC for rejection of the plaint, essentially on the ground that the
C/FA/335/2022 CAV JUDGMENT DATED: 06/05/2022
suit is barred by limitation. The appellant filed reply to the said
application on 12.11.2021 at Exh.104 and 108 respectively and
opposed the reliefs sought for by the defendant No.1 in the said
applications.
3.8 The learned Judge, City Civil Court No.4, Ahmedabad,
after hearing the parties and considering the case, by the
impugned separate orders dated 10.1.2022 accepted applications
Exh.103 and 107 and rejected both the plaints on the ground that
the suits are barred by the law of limitation.
3.9 Hence these appeals.
4. Mr. Shalin Mehta, learned Senior Counsel appearing
with Mr. Rohan A. Shah appearing for the appellant - plaintiff has
assailed the orders impugned in these appeals. He would submit
that the learned Trial Court has committed an error in accepting
the applications of defendant No.1 only on the ground that the
plaintiffs had filed the suit in the year 2005 wherein the challenge
is to cancel the Sale Deed dated 6.7.2000, but has miserably failed
to consider other prayers sought in the plaint. He would further
submit that it is an undisputed fact that the Power of Attorney
executed by the plaintiffs in favour of defendant No.5 who happens
to be their close relative was cancelled on 22.2.1999 by issuing a
notice to him as well as in local newspapers whereas the Sale
Deeds have been executed on 6.7.2000. Therefore, the contentions
raised by the plaintiffs about the illegal transaction which is ab-
initio-void has not been dealt with. He would further submit that
the plaintiffs have also raised contention that the entire property
was not divided / partitioned by metes and bounds at the time of
execution of the Sale Deeds and, therefore, the share of Dr.
C/FA/335/2022 CAV JUDGMENT DATED: 06/05/2022
Sushrut Motibhai Patel, brother of the plaintiff sold by him showing
the brother's share was not referred therein, the conveyance qua
the property belonging to the plaintiffs are illegal, has not been
properly dealt with by the learned Trial Court. He would further
submit that by virtue of the Sale Deed which is illegal, the
defendants were put in possession of the suit property and,
therefore, they are tress-passers and for removal of such tress-
passers, necessary prayers have also been made. He would further
submit that the learned Trial Court has erred in accepting the case
of the defendants that the fact that an amount of Rs.20 Lacs and
Rs.2 Lacs respectively were deposited in the account of the
plaintiffs and did not take care to refund the same, at the time of
cancelling the Power of Attorney, there is no need for refunding the
amount to the plaintiffs. He would further submit that though
Conveyance has been executed, there is no material produced on
record to show that remaining amount / sale consideration has
been credited in the account of any of the plaintiffs. These aspects
ought to have been considered by the learned Trial Court since the
same can be considered as mixed question of facts and law. He,
therefore, would submit that if there is mixed question of facts and
law, the same can be decided only after full-fledged trial and the
learned Trial Court ought not to have accepted the applications and
reject the plaint on the ground of limitation.
4.1 Mr. Mehta would further submit that the learned Trial
Court has committed an error in accepting the applications as if the
suit was filed only for cancellation or setting aside of the
Conveyances dated 6.7.2000 and would fall under Article 59 of the
Schedule to Limitation Act which prescribe the period of limitation.
He would further submit that in fact, in case the plaintiff has
sought possession of the property along with the prayers of setting
C/FA/335/2022 CAV JUDGMENT DATED: 06/05/2022
aside the Conveyance which is illegal and void ab-initio and,
therefore, the period prescribed under Article 65 of Schedule to
Limitation Act is of 12 years. Therefore, the suit has been filed
within a period of limitation. In support of this submission, Mr.
Mehta has relied upon a decision of the Hon'ble Supreme Court in
the case of Sopanrao and another v. Syed Mehmood and
others, (2019) 7 SCC 76. By taking us through the said decision,
he would submit that the ratio laid down by the Apex Court in
paragraph 9 of the said decision would be applicable in the facts of
the present case. He would further submit that one of the prayer
for possession of the property does exist, for which the suit has
been filed within a period of 12 years and, therefore, the plaint
cannot be rejected that one of the prayer is barred by limitation.
4.2 By relying upon the decision of the Hon'ble Apex Court
in the case of C. Natrajan v. Ashim Bai and another (2007) 14
SCC 183, Mr. Mehta would submit that the question whether the
suit is barred by limitation or not, would depend upon the facts and
circumstances of each case.
4.3 By relying upon the decision of the Hon'ble Apex Court
in the case of Srihari Hanumandas Totala v. Hemant Vithal
Kamat and others, (2021) 9 SCC 99, Mr. Mehta would submit
that the Hon'ble Apex Court has laid down certain guidelines for
deciding an application filed under Order VII, Rule 11 (d) of the
CPC. It has been held in the said decision that only the averments
in the plaint are to be referred, the defense of the defendants in the
suit must not be considered while deciding such application and
other points with regard to res judicata which is not the issue in the
present case. Similar is the ratio laid down by the Hon'ble Apex
Court in the case of Urvashiben and another v. Krishnakant
C/FA/335/2022 CAV JUDGMENT DATED: 06/05/2022
Manuprasad Trivedi, (2019) 3 SCC 372.
4.4 Mr. Mehta has also relied upon an unreported decision
of the Division Bench of this Court in the case of Kiritbhai
Dahyabhai Patel v. Gujarat Eco Infrastructure Private
Limited, decision dated 18.10.2019 passed in First Appeal
No.479 of 2019. He would submit that since total consideration
of the sale transaction is not paid to the plaintiffs by the
defendants, it cannot be treated as 'sale' as defined under Section
54 of the Transfer of Property Act and hence, the learned Trial
Court ought not to have rejected the plaint without examining the
evidence which might have been led by the parties to the
proceedings.
4.5 A heavy reliance is placed by learned Senior counsel
Mr. Mehta on the decision of the Apex Court in the case of Sopan
Sukhdeo Sable and others v. Assistant Charity Commissioner
and others, (2004) 3 SCC 137. By taking us through the
observations made by Hon'ble the Apex Court in paragraph 15 of
the said judgment, he would submit that the language of various
paragraphs in the plaint cannot be compartmentalized, segregated
etc. and, therefore, in the present case, reading the plaint as a
whole, it cannot be said that the suit could have been rejected only
on the ground of limitation and that too without proper trial. He,
therefore, would submit that the present appeals may be allowed
and the impugned judgment and decrees be quashed and set aside.
5. On the other hand, Mr. A. S. Vakil, learned advocate
appearing for the defendant No.1 - Society has vehemently opposed
these appeals and supported the reasons assigned by the learned
Trial Court accepting the applications filed by defendant No.1
C/FA/335/2022 CAV JUDGMENT DATED: 06/05/2022
under Order VII, Rule 11 (d) of CPC. By taking us through
applications Exh.103 and 107 respectively in both the suits, he
would submit that the plaintiffs were fully aware about execution of
the Sale Deeds dated 6.7.2000 which was registered at Serial
No.2781 and relevant entries were mutated in the revenue record.
He would further submit that the plaintiffs cannot say that they
were not aware about execution of the registered Sale Deed since
they themselves have challenged those mtation entry in the month
of September, 2000 itself i.e. within a period of two months only.
5.1 Mr. Vakil would further submit that the plaintiffs have
deliberately not mentioned about the action taken by them under
the provisions of the land laws in the plaint and/or in the reply filed
to the applications Exh.103 and 107 respectively which have been
filed under Order VII, Rule 11 (d) CPC. He would further submit
that clever drafting of plaint making prayers or describing the
cause of action would not bring the case within the prescribed
period of limitation under the provisions of the Limitation Act,
1963. He would further submit that apart from the observations
made by Hon'ble Apex Court in the case of Sopan Sukhdeo Sable
and others v. Assistant Charity Commissioner and others which has
been relied upon by the appellants themselves, it has been held
therein that the entire and meaningful reading of averments of the
plaint is necessary. He would further submit that Hon'ble the Apex
Court in latest decision in the case of Raghwendra Sharan Singh
v. Ram Prasanna Singh (Dead) by Legal representatives,
reported in (2020) 16 SCC 601 has held that on entire and
meaningful reading of the averments in the plaint, if it is found that
there is no cause of action and right to sue is found to be barred by
law of limitation, the same can be held vexatious and meritless and
on that ground, the plaint can be rejected.
C/FA/335/2022 CAV JUDGMENT DATED: 06/05/2022
5.2 Mr. Vakil has also relied upon the decision of the
Hon'ble Apex Court in the case of Hardesh Ores (P) Limited v.
Hede and Company, (2007) 5 SCC 614, he would submit that
the real foundation of filing a suit is required to be examined and,
therefore, if the facts of the case are perused, the learned Trial
Court has committed no error in rejecting the plaint. It has also
been held in the aforesaid decision that the disclosure of cause of
action might be essentially a question of fact which must be found
out from a purposeful and meaningful reading of the plaint itself
and whether it would be possible for the Court to pass a decree in
terms of prayers in their entirety.
5.3 He would further submit that the powers under Order
VII, Rule 11 of CPC may be exercised by the Court at any stage
before conclusion of the trial and at appropriate time a party can
raise this issue which has been rightly dealt with by the learned
Trial Court. In support of his submission, he has relied upon the
decision of the Hon'ble Apex Court in the case of Dahiben v.
Arvindbhai Kalyanji Bhanusali (Gajra) dead through legal
representatives and others, (2020) 7 SCC 366. He has also
relied upon unreported decision of this Court in the case of Ujiben
D/o. Nramtuji Ghelaji and another v. Heli Co-operative Society
Limited and others, dated 17.6.2016 rendered in First Appeal
No.577 of 2016 wherein the coordinate Division Bench of this Court
while relying upon the earlier decision of this Hon'ble Court has
held that if by praying a relief in the plaint, attempt is made by
plaintiffs to bring the suit within the prescribed period of limitation,
it is found that the same is completely barred by law, the same can
be rejected without trial.
C/FA/335/2022 CAV JUDGMENT DATED: 06/05/2022
5.4 He would further submit that the plaintiffs by raising
the plea of alleged tress-pass has tried to bring the case as if the
limitation can be considered under Article 65 of the Limitation Act.
But the fact remains that unless registered Sale Deeds are quashed
and set aside (which are clearly barred by limitation) by which
possession was handed over, it cannot be said that the defendants
have committed tress-pass on the suit property. In other words,
Mr. Vakil has submitted that if the Sale Deeds are sustained and
the title of the defendant No.1 - Society is sustained, then the
question of grant of relief of handing over possession (in absence of
title) to the plaintiffs does not arise. The prayer for possession is
only a consequential relief in the plaint.
5.5 He would further submit that the plaintiffs have raised
a contention about the non-disclosure of metes and bounds of the
properties. However, the defendants have become owner of the
entire property including the half share of the suit property which
was sold by Dr. Sushrutbhai Motibhai Patel, brother of original
plaintiff - Dr. Kiran Motibhai Patel and, therefore, original plaintiff
should have joined his brother as defendant in the suit proceedings
which he has not done and, therefore also, the prayers prayed for
in the suits should not have been entertained.
5.6 Considering all these aspects, he would submit that the
Appeals may be dismissed.
6. We have heard learned advocates appearing for the
respective parties, perused the impugned judgment and decrees
passed by the learned Trial Court and have also gone through the
documents produced by both the parties in the nature of paper-
book. The following facts are not in dispute :-
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(I) That Power of Attorney was executed on 23.12.1994 by the
original plaintiff - Dr. Kiranbhai Motibhai Patel (now Decd.) in
favour of defendant No.5 - Rameshbhai Ravjibhai Patel (who is
close relative of the original plaintiff) permitting him to deal with
the suit property and to execute all necessary documents for selling
the said property.
(II) Accordingly, agreement for sale was executed by defendant
No.5 in favour of defendant Nos.2 and 3 on 24.7.1995 for a
consideration of Rs.1.66 Crores for the suit property of Civil Suit
No.1786 of 2005 and an amount of Rs.20 Lacs was received by the
plaintiff in his own account. Thereafter, on 18.5.1996, defendant
No.5 executed registered agreement in favour of defendant Nos.2
and 3 and it was agreed to treat defendant Nos.2 and 3 as Agents
of the original plaintiff and to negotiate and procure purchasers.
(III) Similarly, the defendant No.5 executed agreement dated
30.5.1996 in favour of defendant Nos.1 to 4 for a sale consideration
of Rs.30 Lacs for the suit property of Civil Suit No.1785 of 2005
and Rs.2 Lacs was deposited in the bank account of the original
plaintiff.
(IV) The defendant No.5 was served with a notice at the instance
of the plaintiff on 5.3.1999 and the said notice was also published
in Gujarat Samachar and Times of India newspapers asking Power
of Attorney not to act as per the Power of Attorney and cancelled
the Power of Attorney.
(V) Registered Sale Deeds have been executed by Power of
Attorney - defendant No.5 on 6.7.2000 in favour of defendant No.1
Society. As per the said registered Sale Deeds, the defendants have
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agreed to reimburse the amounts in different ways.
(VI) Based on the registered Sale Deeds, Entry No.5019 came to
be mutated in the revenue record on 9.8.2000 / 11.9.2000 with
regard to the same and name of defendant No.1 Society came to be
mutated.
7. From the documents produced along with the First
Appeals in the nature of paper-book, it appears that having become
aware about the said sale transaction, in September 2000, the
original plaintiffs preferred RTS Appeal No.95 of 2000 challenging
Entry No.5019. Hence, it can safely be said that the original
plaintiffs were aware about the transaction dated 6.7.2000 within a
period of two months from thereof and he had accordingly initiated
appropriate proceedings under the land laws. However, the suits
came to be filed on 10.10.2005 before the learned City Civil Judge,
Ahmedabad praying for various reliefs as reproduced herein above.
8. Now considering the above aspects, if we peruse the
plaint of Civil Suit No.1786 of 2005, translated paragraphs 15
and 16 of the plaint provided by the Translator of Gujarat High
Court, which discloses the cause of action is reproduced below
for ready reference :-
"(15) The reason of this suit is such that, the
defendant no. 1 to 5 in the present suit, in collusion
with each other, and on the basis of the Power of
Attorney dated 23/12/1994 given to him for
administering the properties of the plaintiff as stated
below in the Schedule, though they were not given any
such powers, they executed the so called Agreement
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Without Consideration dated 18/05/1996 and when the
same facts came to our knowledge, we the Plaintiffs
have canceled, vide the notice dated 22/02/1999 the
Power of Attorney dated 23/12/1994 given to the
Defendant no.5. Further, vide the Public Notice dated
05/03/1999 in the Gujarat Samachar and the Time of
India newspapers, it was informed to the people that
the Power of Attorney dated 23/12/1994 has been
canceled. Thereafter, vide the notice dated
05/03/1999, the Agreement dated 30/05/1996 was also
canceled. With regard to our notice dated 05/03/1999,
when the Defendant no.1 gave his reply dated
23/04/1999, we the plaintiff came to know that, though
we the plaintiff had not given any powers to the
defendants for transferring our stated properties, it
came to our knowledge that the defendant no.1 to 5
have executed a so called Sale Deed dated 06/07/2000
and got it registered before the Office of Sub registrar,
Ahmedabad vide Sr. no. 2780. The sale deed has not
been executed in favor of the defendant no.1 either by
we the plaintiff or any authorised person of we the
plaintiff. The sale deed being ultra vires, without
consideration, executed without any kind of authority,
void ab initio etc, it does not convey any right of
ownership or possession of the property of we the
plaintiff. Though no right of defendant no.1 Society has
arisen in our property, the defendant no.1 is trying to
directly or indirectly enter into the transaction related
to the transfer of our property and thereby creating
complications and confusions and we the plaintiff have
such apprehensions and thereby this Hon'ble Court
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has the jurisdiction in this regard.
(16) The present suit of we the plaintiff is
within the limitation period, because, the Defendant
no.5 was required to perform the acts in accordance
with the Power of Attorney dated 23/12/1994 which
was given to him. Instead, he has done the acts for
which he was given no powers and the defendant no.5
executed a so called agreement dated 18/05/1996 in
favor of the defendents on so called terms and
conditions regarding the property of we the plaintiff.
Thereafter, the defendant no.5, in collusion with
defendant no.1 to 4, executed a so called Earnest
Money Deed against consideration of Rs.1,70,00,000/-
(One crore seventy Lakh) for the property of we the
plaintiff having value of Rs.3,70,00,000/- (three crore
seventy lakh). When it came to our knowledge that, an
Earnest Money Deed dated 30/05/1996 of the one half
of the property of our brother Dr. Sushrutbhai
Motibhai Patel, having value of Rs.3,70,00,000/- (Three
crore seventy Lakh) and the stated Earnest Money
Deed had been registered with the Office of Sub
registrar, Ahmedabad vide Sr. no. 1965 on the same
day, we the plaintiff have canceled the Power of
Attorney assigned to the Defendant no.5 vide our
notice dated 22/02/1999. Thereafter, by publishing a
Public Notice in the newspapers - the Gujarat
Samachar and the Times of India on 05/03/1999, the
cancellation of the stated Power of Attorney was
informed to the public. Vide the notice dated
05/03/1999, the Defendant no.1 to 4 were informed
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about cancellation of the Earnest Money Deed dated
30/05/1996. Despite that, the defendants in collusion
with each other and by hatching a conspiracy against
us, fraudulently, executed a so called Sale Deed dated
06/07/2000, registered vide Sr.no. 2780 for the
property of we the plaintiff, in favor of the Defendant
no.1. The stated Sale Deed is illegal, without any
consideration, unauthorized, lacking in authority, void
ab initio and non est, because it has neither been
executed by we the plaintiff nor by our authorised
representatives. Therefore, on the basis of such so
called Deed which is void ab initio, non est etc., not
any ownership or occupation rights of the property of
we the plaintiff are being conveyed to the Defendants.
The Defendant no.1 being an illegal occupier of our
property, we the plaintiffs have prayed for an
injunction that, the property as stated in the Schedule
below, be partitioned accordingly and the Defendant
no.1 or any other defendant being an illegal occupier,
its direct and open possession be handed over to us.
Therefore, our suit is not barred by the limitation."
9. On the above referred grounds of cause of action,
translated prayers prayed in paragraph 17 of the plaint is
reproduced below for ready reference :-
"(17) Therefore, I pray as under :-
(a) The document registered at Sr. No.2780 on
06/07/2000 in favour of the defendant no.1 pertaining to
the half portion owned and occupied by the plaintiff
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bearing Final Plot No.431 of T.P. Scheme No.21 and Old
Survey No.58 of Moje: Chhadawad of Taluka: City in the
Registration District Sub-District Ahmedabad-4 (Paldi), is
fake, void, unauthorised, without consideration, void-ab-
initio and non-est and the said document has not been
executed by the plaintiff or his authorised agent and
therefore, kindly hold that my property is not transferred
legally to the defendant no.1 by so called registered sale
deed no.2780 dated 06/07/2000 or the defendant no.1
does not get entitled for the ownership or possession
rights of my property and the plaintiff is the owner and
occupier till today.
- - Or - - as alternative;
If the learned court comes to the conclusion that Sale
Deed registered at Sr. No.2780 on 06/07/2000 is
pertaining to the property of the plaintiff, kindly pass an
order setting aside the same declaring it to be fake, void,
without consideration, unauthorised, void-ab-initio and
non-est.
(b) As the plaintiff holds half undivided share in the
property bearing Final Plot No.431 of T.P. Scheme No.21
of Moje: Chhadavad village, kindly divide the entire
property and grant vacant and actual possession of the
share of the property to the plaintiff.
(c) The defendant no.1 to 4 have illegally demolished
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the construction carried out by the plaintiff on the half
undivided portion of the property of the plaintiff bearing
Final Plot No.431 of T.P. Scheme No.21 of Moje:
Chhadavad without any rights and thereby, they have
caused damage to the constructed property and furniture
worth Rs.25,00,000/- (Rupees Twenty Five Lacs only) and
thus, they have caused loss to the plaintiff. Kindly pass a
decree in favour of the plaintiff to recover the said loss-
damage with compounding interest @ 9% from the date of
the suit from defendant no.1 to 4, whoever found
responsible.
(d) Kindly declare that the defendant no.1 and or the
defendant no.1 to 4 are illegal trespassers in the property
of the plaintiff described in the schedule below and
thereby pass a decree against the defendants to handover
the vacant and actual possession of the property to the
plaintiff.
(e) As no legal transfer of the property belonging to
the plaintiff took place in favour of the defendant no.1 and
as the defendant no.1 or any other defendant(s) are
entitled for the ownership or possession rights, kindly
pass permanent injunction order that the defendant,
defendants, their agents, representatives etc. shall not
carry out the construction or development activities on
the said property or shall not assign possession of the
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property to others or shall not create any mortgage or any
other encumbrance of the property.
(f) Kindly grant any other relief as may deem fit and
appropriate to the learned court considering the overall
facts of the suit.
(g) Kindly grant the entire cost of the suit from the
defendants."
10. Similar are the averments of cause of action in another
suit being Civil Suit No.1785 of 2005. However, only the
registration number of the document of sale and the amount of sale
consideration would vary and, therefore, the same have not been
reproduced.
11. We have also closely perused the contents of both suits
and the same have been read as a whole and not in compartment as
observed by Hon'ble Apex Court in the case of Sopan Sukhdeo
Sable and others v. Assistant Charity Commissioner (Supra) and
others and in the case of Raghwendra Sharan Singh v. Ram
Prasanna Singh (Dead) by Legal representatives (Supra). We have
also gone through applications Exh.103 and 107 preferred by the
defendant No.1 under Order VII, Rule 11 (d) CPC. It is true that
the original plaintiff by notice dated 5.3.1999 directed the
defendant No.5 - Power of Attorney not to act further as per the
Power of Attorney and also published the notice to the said effect in
the local newspapers declaring cancellation of the Power of
Attorney. But the defendants at their own risk had entered into
Sale Deed on 6.7.2000 and the same was registered with the
Competent Authority in accordance with law. However, it is also
not in dispute that the original plaintiff having come to know about
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registration of the Sale Deed in connection with the suit properties
of the original plaintiffs, immediately i.e. within a period of two
months i.e. in September 2000, initiated proceedings under the
land laws seeking cancellation of Entry posted in pursuance of the
Sale Deed instead of challenging the Sale Deed on the grounds
referred in the plaint. The suit came to be filed only in October
2005 i.e. after more than five years from the date of registration of
the Sale Deeds. The defendant No.1 has specifically raised this
contention in the applications Exh.103 and 107 respectively and if
we peruse the reply of the plaintiffs, they have not denied this
aspect and have only stated that the suit properties have been sold
fraudulently and issue of limitation is a mixed question of facts and
law and, therefore, the applications be rejected. Even before this
Court, the appellants have mainly argued this aspect only.
12. If we read the plaints of both the suits as a whole, we
are of the opinion that the plaintiffs by raising the plea of tress-
passing have tried to bring the suits within the prescribed period of
limitation under Article 65 of the Limitation Act.
13. It is an undisputed fact that with regard to the sale
transaction, documents have been registered and the property is
already transferred in the name of the respective defendant.
Hence, unless the sale transaction is quashed and set aside on the
grounds claimed by the plaintiffs, the case of tress-passer can be
considered subsequent thereto and cannot be decided
independently in view of the fact that at the time of execution of
the Sale Deeds, possession has already been handed over to
respective defendants. It is also pertinent to note that after getting
the possession, the concerned defendant has demolished the
construction standing on the suit property and, therefore, it can be
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said that they are in possession of the suit property and, therefore,
while deciding applications under Order XXXIX CPC, the learned
Trial Court has directed both the parties to maintain status-quo
way back in the year 2007 which had continued till the impugned
order passed by learned Trial Court.
14. In view of the above fact, we are of the opinion that
Article 59 of Schedule of Limitation Act would come into play which
reads as under :-
Period of Time from which period
Description of suit limitation
begins to run
When the facts entitling
59. To cancel or set
Three years
the plaintiff to have the
aside an instrument
instrument or decree
or decree or for the
cancelled or set aside or
rescission of a
the contract rescinded
contract.
first become known to
him.
15. Aforesaid provision makes it clear that an aggrieved
person is supposed to file a suit to cancel or set aside an
instrument or decree or for the rescission of a contract within a
period of three years from the date on which he comes to know
about the same. Therefore, we are of the opinion that when the
plaintiffs came to know about registration of the Sale Deed, they
immediately took out proceedings under the revenue laws in the
month of September, 2000. However, the plaintiffs did not file any
suit to cancel the said registered Sale Deeds. Even if we presume
that the plaintiffs came to know about the registered Sale Deeds in
the month of September 2000 when they initiated proceedings with
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regard to the entries mutated with regard to the registered Sale
Deeds in question, the limitation would end in the month of
September, 2003. Therefore, we are of the opinion that the
learned Trial Court has committed no error in accepting the
applications Exh.103 and 107 of the defendant No.1 and holding
that the suits have been filed beyond the prescribed period of
limitation.
16. Apart from the above aspects, the principles laid down
by the Hon'ble Apex Court in the case of Sopan Sukhdeo Sable
and others v. Assistant Charity Commissioner (Supra) is
applicable since the case involved in that case was only with regard
to the possession of the immovable property and not a question of
quashment of registered Sale Deeds, which is the moot question in
the present proceedings. We accept and are bound by the ratio
laid down by the Hon'ble Apex Court in the case of C. Natrajan v.
Ashim Bai and another (Supra) wherein it is held that defense
cannot be taken into consideration while dealing with an
application under Order VII, Rule 11 (d) CPC and, therefore, we
have not examined the defense, but we have examined the case as
a whole and it appears from the averments made in the plaint that
the cause of action has been smartly and cleverly drafted to create
an illusion of a cause of action and the reliefs have been prayed
accordingly. The core issue in question in the decision of Hon'ble
Apex Court in the case of Srihari Hanumandas Totala v.
Hemant Vithal Kamat and others (Supra) was of a case about
legal bar under the res judicata i.e. Section 11 of CPC. However,
the said question is not relevant in the facts of the present case.
Similar is the decision of Hon'ble Apex Court in the case of
Urvashiben and another v. Krishnakant Manuprasad Trivedi
(Supra) as well as the decision in the case of Vaish Aggarwal
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Panchayat v. Inder Kumar and others, (2020) 12 SCC 809.
17. Further, from reading of the plaint as a whole, we find
that it does not involve any mixed question of law and facts. In our
opinion, the decision of the Hon'ble Apex Court in the case of
Raghwendra Sharan Singh v. Ram Prasanna Singh (Dead) by
Legal representatives (Supra) relied upon by learned advocate
Mr. A. S. Vakil would be relevant. In the said decision, legality and
validity of a registered Gift Deed was challenged beyond the period
of limitation. But the way in which the plaint was drafted, the
same was treated as a crafty drafting solely to bring the case
within the prescribed period of limitation. In paragraph 6.9,
relying upon the decision of the Hon'ble Apex Court in the case of
Ram Singh v. Gram Panchayat Mehal Kalan, the Hon'ble Apex
Court has observed as under :-
"6.9 In Ram Singh, this Court has observed and
held that when the suit is barred by any law, the
plaintiff cannot be allowed to circumvent that
provision by means of clever drafting so as to avoid
mention of those circumstances, by which the suit is
barred by law of limitation."
18. In the case of Prem Singh others v. Birbal and
others (Supra), the Hon'ble Apex Court has held in paragraph 17
that once, however, a suit is filed by a plaintiff for cancellation of a
transaction, it would be governed by Article 59. Therefore,
considering the provisions of Article 59, the suit is clearly barred
by limitation which provides filing of a proceedings to cancel or set
aside an instrument or decree or for the rescission of a contract
within a period of three years from the date of knowledge thereof.
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It is settled legal position that "registration" of a deed / instrument,
is deemed knowledge / notice of such deed / instrument and the
period of limitation would therefore commence from date of
registration. At the cost of repetition, we would like to observe
that the plaintiffs were aware about the registered sale transaction
in September 2000, however, the suit has been filed in October,
2005 i.e. after more than five years after registered Sale Deeds,
seeking various reliefs which can be considered only and only if
and after the Sale Deeds are quashed and set aside.
19. As per the decision of the Hon'ble Apex Court in the
case of Dahiben v. Arvindbhai Kalyanji Bhanusali (Gajra)
dead through legal representatives and others (Supra), it has
been held that if the Court finds that any ground is made out under
Clauses (a) to (e) of Order VII, Rule 11 CPC, the Court is bound to
reject the plaint under Order VII, Rule 11. In the said decision, it
has also been held that any application filed under Order VII, Rule
11 (d) CPC can be entertained before completion of the trial. The
arguments advanced by the plaintiffs that only part of the amount
of sale consideration is received by them and thereafter, Sale Deed
with defendants have been executed and, therefore, the suit may
be tried, the said aspect has also been considered while dealing
with the aforesaid case of Dahiben, following observations have
been made by the Hon'ble Apex Court as under :-
"If the case made out in the Plaint is to be believed, it
would mean that almost 99% of the sale consideration
i.e. Rs.1,73,62,000 allegedly remained unpaid
throughout. It is, however inconceivable that if the
payments had remained unpaid, the Plaintiffs would
have remained completely silent for a period of over 5
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and ½ years, without even issuing a legal notice for
payment of the unpaid sale consideration, or
instituting any proceeding for recovery of the amount,
till the filing of the present suit in December 2014.
Even if the averments of the Plaintiffs are taken to be
true, that the entire sale consideration had not in fact
been paid, it could not be a ground for cancellation of
the Sale Deed. The Plaintiffs may have other remedies
in law for recovery of the balance consideration, but
could not be granted the relief of cancellation of the
registered Sale Deed. That the words "price paid or
promised or part paid and part promised" indicates
that actual payment of the whole of the price at the
time of the execution of the Sale Deed is not a sine qua
non for completion of the sale. Even if the whole of the
price is not paid, but the document is executed, and
thereafter registered, the sale would be complete, and
the title would pass on to the transferee under the
transaction. The non-payment of a part of the sale
price would not affect the validity of the sale. Once the
title in the property has already passed, even if the
balance sale consideration is not paid, the sale could
not be invalidated on this ground. In order to
constitute a "sale", the parties must intend to transfer
the ownership of the property, on the agreement to
pay the price either in praesenti, or in future. The
intention is to be gathered from the recitals of the sale
deed, the conduct of the parties, and the evidence on
record."
20. In our opinion, the decision of the Hon'ble Apex Court
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in the case of Dahiben v. Arvindbhai Kalyanji Bhanusali
(Gajra) dead through legal representatives and others
(Supra) would squarely cover the case on hand. If the main relief
of quashment of Sale Deeds is not maintainable, the consequential
relief cannot be granted. Again, the Hon'ble Apex Court has held
that there is a need of reading the entire plaint as a whole and as
stated herein above, in the present case, the plaint has been
cleverly drafted by not disclosing about knowledge of the Sale
Deeds immediately from the date of execution thereof nor rebutting
the same in the reply filed by the plaintiffs to the applications
Exh.103 and 107 filed by defendant No.1 under Order VII, Rule 11
(d) CPC.
21. Considering the peculiar facts and circumstances of the
case stated herein above, we are of the opinion that the learned
Trial Court has committed no error in accepting the applications of
the defendant No.1 and thereby rejecting the plaints on the ground
of limitation. Hence, both the appeals stand dismissed.
(A. J. DESAI, J)
(ANIRUDDHA P. MAYEE, J.)
22. Upon pronouncement of the judgment, a request has
been made by Mr. Rohan Shah, learned advocate for the appellants
to direct the parties to maintain status quo to enable the appellants
to challenge this order before Hon'ble Apex Court. Mr. A.S. Vakil,
learned advocate appearing for the defendant No.1 has opposed
this request stating that during the pendency of the appeals, no
stay has been granted by this Court. The stay granted / extended
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by the Trial Court was only upto "filing" of the Appeals. We are of
the opinion that considering the fact that the judgment was
reserved and no action has been taken by any parties, the status
quo granted by learned Trial Court is hereby extended for a period
of four weeks from today. The defendants shall not transfer and/or
create any right over the suit properties in any manner whatsoever
for a period of four weeks.
Sd/-
(A. J. DESAI, J)
Sd/-
(ANIRUDDHA P. MAYEE, J.)
SAVARIYA
