Gujarat High Court
Varis Gulambhai Mahida vs Mohsin Aiyub Sidat on 24 August, 2023
Bench: Gita Gopi
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CIVIL REVISION APPLICATION NO. 271 of 2019
FOR APPROVAL AND SIGNATURE:
HONOURABLE MS. JUSTICE GITA GOPI
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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 ? Yes
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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VARIS GULAMBHAI MAHIDA
Versus
MOHSIN AIYUB SIDAT
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Appearance:
MR ZUBIN BHARDA assisted by MR RUTVIJ S OZA(5594) and MR UMANG
VYAS for the Applicant(s) No. 1
MR NAVIN PAHWA, SENIOR ADVOCATE assisted by MR NACHIKET A
DAVE(5308) for the Respondent(s) No. 1
MR. NIKUNJ KANARA(7301) for the Respondent(s) No. 2,3,4,5
NOTICE SERVED BY DS for the Respondent(s) No. 6,7,8
MR MASOOM K SHAH(6516) for the Respondent(s) No. 9
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CORAM:HONOURABLE MS. JUSTICE GITA GOPI
Date : 24/08/2023
ORAL JUDGMENT
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1. The applicant is defendant no.5 of Special
Civil Suit no.21/18 filed before the learned
Principal Senior Civil Judge, Mandvi who had
moved an application below Order 7 Rule 11 of
the Code of Civil Procedure, 1908 (for short
'CPC') which came to be rejected on 18.4.2019.
Aggrieved by the said order, the present
revision under Section 115 of the CPC has been
filed.
2. The plaintiff before the learned Principal
Senior Civil Judge, Mandvi brought the case
that he along with defendants no.6 to 8 are
real brothers, defendant no.9 is uncle, while
they have no connection with rest of the
defendants. Defendant no.5 is the purchaser
from defendants no.1 to 4, of the property
bearing revenue survey no.871 and 872 of
Village Kosamba, Taluka Mangrol, District
Surat.
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3. The plaintiff stated that his father-Ayub
Suleman Sidat had purchased the property from
the original owner - Dahyabhai Becharbhai on
24.6.1971 by registered sale deed for
consideration of Rs.5,000/-. The land being
new tenure, by paying premium amount of
Rs.1,342.20 ps. vide order dated 17.6.1971 of
the Deputy Collector, Olpad section in
No.Tenancy/Vashi, the sale was mutated in the
revenue office by entry no.2259 on 28.10.1971
which was certified on 25.12.1971. Thus, Ayub
Suleman Sidat, father of the plaintiff and
defendants no.6 to 8 became the owner in
possession of the land.
4. The plaintiff has averred that thereafter, as
per the Muslim law, their father by an oral
gift without consideration, had handed the
ownership and possession of the land to all
the sons, and one Yakub Yusuf Khanji was made
the guardian of the land for the plaintiff and
defendants no.6 to 8, and therefore, plaintiff
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and defendants no.6 to 8 became the owners in
possession of the land, and the revenue entry
no.2260 to that effect was mutated on
28.10.1971 which was certified on 25.12.1971.
5. It is contended that defendants no.1 to 4 are
not related to them nor are they their family
members and as per the Muslim personal law,
the land cannot be considered as ancestral.
Inspite of that, the name of the predecessor
of defendants no.1 to 4 - Ayub Ibrahim Desai
was shown in the suit property vide entry
no.2786. It is stated that Ayub Ibrahim Desai
was not the co-owner of the land, inspite of
that, the said entry on 2.3.1976 was noted,
and without any reason, the names of the
plaintiff as well as defendants no.6 to 8 came
to be deleted, effecting their legal rights
and only the name of Ayub Ibrahim Desai was
noted in revenue record, while the entry
reflects that the land was running only in the
name of minor Salim Ayub Sidat, with his
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guardian Yakub Yusuf Khanji.
6. By way of partition, the land is shown to be
given to Ayub Ibrahim Desai. It is alleged
that it was in connivance with the revenue
officers that the names of all the minors were
deleted, and, it appears that their minority
has been misused for deleting the name which
is against the law and thus, the plaintiff has
contended that such entry is null and void and
does not provide any right, title nor does it
convey any interest. It is also further
averred that the plaintiff and the defendants
no.6 to 8 had never given any writing nor had
executed any sale deed nor had transferred
their right to Ayub Ibrahim Desai by any other
way. Ayub Ibrahim Desai is not their relative
and since he does not have any right, title or
interest, the said entry would not effect
their legal rights nor would minimize the
legal rights. In that circumstances, entry
nos.2786 and 6782 would not convey any legal
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right or title to the heirs of Ayub Ibrahim
Desai who are defendants no.1 to 4. Further,
it is stated that since the revenue entry was
of minor Salim Ayub, no permission was
procured from the District Court before
certifying the same, and for obscure reason,
entries have been certified, which are null
and void.
7. The plaintiff states that he was studying in
Std.10 and when was minor, had gone to South
Africa for business and at that time, the
plaintiff as well as defendants no.6 to 8 had
jointly given revenue survey nos.871 and 872
of Village Kosamba to defendant no.9 for
cultivation, defendant no.9 was tilling the
land and was receiving the crop. The crop of
sugarcane was deposited in Sayan sugar factory
and defendant no.9 on their behalf was paying
the land revenue as well as the education cess
and irrigation tax, thus the land had
continuously remained in their possession and
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occupation.
8. The plaintiff has further stated that by
revenue entry no.6782 on 10.4.2009, defendants
no.1 to 4 had got their names entered in the
revenue record as successors of the deceased -
Ayub Ibrahim Desai and without any right,
title or interest on the land, they had sold
the land to defendant no.5, who is stated to
be not a bonafide purchaser. The plaintiff
contends that he has been living in foreign
country and he came to know about the sale
deed recently and therefore, he was forced to
file the suit through his power of attorney.
9. The relief prayed in the suit is for
declaration, challenging the entry no.2786
dated 2.3.1976 and entry no.6782 dated
10.4.2009 and further has also challenged the
sale deed in favour of the defendant no.5.
10. Advocate Mr. Zubin F. Bharda assisted by
advocate Mr. Rutvij Oza with advocate Mr.
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Umang Vyas for the applicant submitted that
the plaintiff had no cause to file the suit.
The cause of action raised is false, since
delay of 42 years in filing the suit is not
explained. Brothers of plaintiff, defendants
no.6 to 8 had initiated revenue proceeding,
but on failure, by creating artificial cause
of action, the plaintiff in connivance with
the defendant brothers has filed a false suit
to exert money from defendant no.5 since the
land purchased by him by registered sale deed,
had been acquired under The National Highways
Act, 1956 and the present applicant has to
receive the compensation. Advocate Mr. Bharda
contended that the suit is hopelessly time-
barred. The suit property never remained in
the family since the year 1976. The land had
gone in partition to the father of defendants
no.1 to 4 and after his death, defendants no.1
to 4 as heirs in succession became owner and
the land on being sold, the present
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revisionist had become owner in possession.
The land was acquired by the competent
authority from the revisionist, and the land
got vested to the Central Government on
7.11.2014 and the notice under Section 3(G)
for determination of amount payable as
compensation under The National Highways Act,
1956 came to be served upon the revisionist on
23.2.2018 through Gram Panchayat. The suit is
filed with suppression of these material
facts.
11. Advocate Mr. Bharda stated that the plaintiff
has even not disclosed the facts of revenue
proceedings. The plaintiff had never earlier
challenged the entry no.2786 dated 2.3.1976.
Advocate Mr. Bharda submitted that
neighbouring adjoining land had also been
acquired by the authority for 'Vadodara-Mumbai
Express Way'. The lands were partitioned in
the year 1976 and the suit land came in the
possession of father of defendants no.1 to 4.
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The plaintiff has failed to explain the
indolence, minority of age can be pleaded, but
on attaining majority within reasonable time
under the limitation, the facts disputed has
to be challenged.
12. The plaintiff as well as defendants no.6 to 9
had never raised any objection to the
acquisition proceedings. The RTS proceeding
found no result, petition before S.S.R.D. and
High Court came to be rejected and finally the
suit is innocuously filed, when the brothers
have failed in revenue proceedings.
13. Thus, the revisionist had moved the Trial
Court under Order 7 Rule 11(a) and (d) on the
ground that the suit does not disclose cause
of action and the suit is barred by law.
14. Learned advocate Mr. Zubin Bharda has relied
upon the decision in the case of Raghwendra
Sharan Singh v. Ram Prasanna Singh (Dead) by
LRs, MANU/SC/0367/2019, Dahiben v. Arvindbhai
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Kalyanji Bhanusali (D) Thr. LRs,
MANU/SC/0508/2020 and Canara Bank v. P.
Selathal & Ors., MANU/SC/0239/2020 to support
his arguments.
15. Senior Advocate Mr. Navin Pahwa assisted by
advocate Mr. Nachiket Dave for the respondent
no.1 stated that on 12.6.2017, by the order of
High Court in Special Civil Application
no.7135 of 2017 whereby defendant no.9 and
others had challenged the legality and
validity of the order dated 8.7.2016 passed by
S.S.R.D. rejecting the Revision Application
affirming the order dated 12.12.2014 passed by
the Collector, Surat in RTS Revision
Application no.191 of 2013, the rights of the
parties were kept open to be raised in a Civil
Suit. Advocate Mr. Pahwa stated that the
plaintiff claims his ownership right on the
basis of the registered sale transaction in
favour of father. The immediate predecessor of
defendants no.1 to 4 was not related to the
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plaintiff father to claim partition. They are
no relative nor any document of partition or
document of transfer was executed to claim the
ownership. Entry no.6782 on 10.4.2009 does not
give any title to defendants no.1 to 4.
Relying on the judgments in the cases of Bhau
Ram v. Janak Singh & Ors., (2012) 8 SCC 701,
Chhotanben & Anr. v. Kiritbhai Jalkrushnabhai
Thakkar & Ors., (2018) 6 SCC 422, and Bardoli
Shreerang Exhibitors Private Limited v.
Maheshbhai Babubhai Hirpara, 2022 (2) GLR
1061, advocate Mr. Pahwa submitted that only
averments in plaint can be looked into while
deciding application for rejection of plaint.
Pleas taken by defendant in written statement
are not relevant. It is further contended that
issue regarding suit being barred by
limitation is a triable issue and that suit
cannot be rejected at the threshold in
exercise of power under Order 7 Rule 11(d) of
CPC, and, that, there is distinction between
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no cause of action for the suit and plaint not
disclosing a cause of action which is a mixed
question of facts and law and hence, plaint
cannot be rejected under Order 7 Rule 11(a) of
CPC without relevant evidence placed on record
during trial.
16. On behalf of defendant no.9, Advocate Mr.
Masoom Shah submitted that defendant no.9
though does not admit the plaint, but do agree
that defendants no.1 to 4 are not related to
the plaintiff and defendants no.6 to 8, nor
are they family members and as per the Muslim
personal law, the land cannot be considered as
ancestral property and that the predecessor of
defendants no.1 to 4 - Ayub Ibrahim Desai was
never the co-owner. Inspite of that, entry
no.2796 dated 2.3.1976 came to be mutated and
for that pleading, defendant no.9 has no
dispute. For the facts pleaded in the plaint
in connection with the revenue entry deleting
the name of the plaintiff and defendants no.6
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to 8 in 7/12 extracts and the name of only
Ayub Ibrahim Desai came to be continued and
that no permission was taken from the District
Court on the so-called sale as guardian of
only minor Salim Ayub Sidat and for some
extraneous reasons, entry no.2786 came to be
certified, are not disputed.
17. Advocate Mr. Masoom Shah submitted that since
1971, defendant no.9 was in the possession of
the land as the tenant and was taking
sugarcane crop. Advocate Mr. Masoom Shah
further submitted that Dispute Case no.29/09-
10 was before the Mamlatdar Court and
accordingly, the implementation was to be made
on the basis of the order passed under Section
70B and therefore, states that the land in
question is in the possession of the defendant
no.9 and without any permission or admission
of the defendant no.9, the land could not be
sold by defendants no.1 to 4 to defendant
no.5, and tenancy case is yet pending for
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adjudication before the Agricultural Tribunal,
Mangrol.
18. The application under Order 7 Rule 11 of CPC
was moved by defendant no.5, the present
revisionist, urging that the suit so filed for
blocks no.871 and 872, praying for declaration
and permanent injunction through the power of
attorney on 9.5.2018 is after a delay of 42
years, till then, the plaintiff had remained
inactive and thus, the suit is hit by Articles
56, 58, 109, 110 and 113 of the Limitation
Act.
19. That, the plaintiff in the suit has raised the
cause of action on the ground that he had been
in foreign country for years and that he came
to know about the revenue entries of the land
as well as sale deed recently and immediately,
he was forced to file the suit through the
power of attorney. Refuting, it has been
stated that in fact, under the Land Revenue
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Code, RTS Appeals no.81/10, 82/10 and 83/10,
renumbered as 216/11, 286/11 and 312/11 were
instituted for blocks no.871 and 872. Since
then the plaintiff is in knowledge of the
entries and the sale deed, inspite of that,
the plaintiff has not immediately filed the
suit, but to draw the suit within limitation
by misguiding the Court, has stated false
facts.
20. It is further contended that the plaintiff has
not come with clean hands and has suppressed
material facts and by involving defendant no.5
in false litigation, with an intention to
receive unauthorized gain, has filed the suit,
on being unsuccessful in the revenue
proceedings under the Land Revenue Code. And
when the land has been acquired by Government
authority, the defendant no.5 has not remained
the owner of the land, further the ownership
of the Central Government has not been
disclosed by the plaintiff, and by hiding such
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fact, has misdirected the Court.
21. The defendant no.5 contends that land of
blocks no.871 and 872 along with surrounding
blocks no.867, 868, 869, 870, 873, 874 and 878
had been acquired under the National Highways
Act, 1956 for Vadodara-Mumbai Expressway. The
Central Government under Section 3A had
declared the preliminary notification on
27.11.2013 in the Government gazette, which
was published on 22.1.2014 in the newspaper.
On hearing the objection after the measurement
of the land, under Section 3D of the Act,
notification was declared in the Government
gazette on 7.11.2014 which was published in
local newspaper on 20.1.2015 and after
undertaking the process, in virtue of Section
3(D)(2) of the Act, the suit land as well as
the other lands, without any encumbrance, have
been vested in the Central Government on
7.11.2014 and since then, the land owner is
the Central Government.
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22. The defendant no.5 in his application for
rejection of the plaint, has further stated
that the plaintiff and the defendants no.6 to
9 had never raised the dispute, regarding
their rights before the competent authority,
and since the land in question is of the
ownership of the Central Government from
7.11.2014, the suit is barred by limitation
and in view of provision under Section 3(D)(4)
and 3(D)(1) of the National Highways Act,
1956, the suit for declaration cannot be filed
before the Civil Court or other authorities as
the ownership of the land has been transferred
to the Central Government and therefore, the
Civil Court would have no jurisdiction to
grant the relief.
23. The defendant no.5 further states that
defendant no.9 during the land acquisition
proceeding of blocks no.871 and 872 had never
raised any of his right nor had stated about
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his possession on the land nor had produced
any evidence before the authority about his
easementary right or right as a tenant, and,
as notice dated 23.2.2018 under Section 3(G)
of The National Highways Act, 1956 came to be
served through the Gram Panchayat, it is
alleged that the plaintiff as well as
defendants no.6 to 9 for unauthorized gain
from the compensation amount to be received by
defendant no.5 has brought false litigation.
By creating illusive cause of action, though
the suit is barred by the Limitation Act,
National Highways Act and the Tenancy Act, the
plaintiff without specifying the date and the
circumstances for the cause of action to
arise, without clarifying the fact, after
about a delay of 42 years from the revenue
entry no.2786 and 9 years delay against the
sale deed, filed the suit. It is also stated
that defendant no.5 is only holding the paper
possession since the land has already been
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acquired with the Central Government, and the
fact was known to the plaintiff as well as the
power of attorney. It is thus contended that
the plaint of the plaintiff is hit by the
principle of acquiescence, waiver and estoppel
and is barred by the Limitation Act, as well
as the National Highways Act, 1956 and
therefore, the plaint is required to be
rejected under Order 7 Rule 11(a) and (d) of
the CPC.
24. The learned Additional Senior Civil Judge,
Mandvi, District Surat on 18.4.2019 rejected
the application of defendant no.5 observing
that a mixed question of law and facts has
been raised and without recording of the
evidence, it cannot be decided. The learned
Judge concluded that while deciding the
application under Order 7 Rule 11, only the
facts urged by the plaintiff are required to
be taken into consideration. The reply and the
defence of the defendants or the documentary
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evidence of the defendants cannot be
considered.
25. While considering the facts in the plaint, the
learned Judge observed that the applicant was
still a minor and while in Std.10 had gone to
South Africa for business purpose and since
years, he is in foreign country and after
receiving the knowledge, had filed the suit.
The defendants no.1 to 4 are not the relatives
of the plaintiff and defendants no.6 to 8 nor
their family members, and because of that, the
issue of 42 years delay and 9 years delay
after the sale deed, and the suit being hit by
the provisions of Limitation Act cannot be
decided at the preliminary stage as the fact
of delay in filing the suit and whether being
hit by the Limitation Act is a question to be
decided only after the issues are cast and
evidence are recorded.
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26. The plaintiff in the suit has recorded the
cause of action on the ground that defendants
no.1 to 4 had got the revenue entry no.6782
registered on 10.4.2009 in revenue record
claiming to be the heirs of the deceased -
Ayub Ibrahim Desai and has also urged that
entry no.2786 is false and illegal and does
not confer any title, inspite of that, on that
basis, the heirs of the deceased - Ayub
Ibrahim Desai have got their names mutated,
while the alleged heirs defendants no.1 to 4
have not received any ownership right, title
over the land, nor were in possession,
occupation or management of the land, but in
conspiracy with defendant no.5 has made false
claim to take undue advantage, by stating that
the land has been sold in his favour by
defendants no.1 to 4, thus plaintiff contends
that the claim is false and illegal from the
very beginning, as the defendant no.5 does not
receive any legal right and title of
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ownership, and defendant no.5 yet not being
bonafide purchaser, it is stated that
defendant no.5 has not received any right from
the plaintiff and defendants no.6 to 8, and
merely by the entry of the sale deed, the
right of the plaintiff and defendants no.6 to
8 does not get affected, and the plaintiff
being the legal owner of the land in
possession, holds the title, but by such false
entries by the predecessor of defendants no.1
to 4, those defendants cannot affect the right
of the plaintiff as well as defendants no.6 to
8, when the claim has been made with ill
intention and therefore, the suit for
declaration and permanent injunction has been
filed.
27. The learned Judge to the contention raised by
defendant no.5 that the suit land has gone in
acquisition and therefore, the suit is not
maintainable, the learned Judge observed that
the suit has not been filed on the ground that
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the acquisition is improper, nor the
acquisition has been challenged and the
acquisition proceedings would be conducted on
the basis of the revenue record. However, the
fact, whether the names of the persons in the
revenue record are proper or not, that
authority to decide lies with the Civil Court
and since during the acquisition proceedings,
the revenue record disclose the name of the
defendant no.5, and only on that basis that
the compensation would be paid to him and the
land is to be acquired from him, the suit
cannot be rejected.
28. In the case of Raghwendra Sharan Singh (supra)
relied upon by learned advocate Mr. Bharda,
while allowing the appeal, for rejection of
plaint under Order 7 Rule 11 of CPC, the facts
of the case noted were that the suit by the
plaintiff against the appellant-defendant was
for declaration, that the gift deed executed
in favour of the appellant was showy and sham
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and no title and possession with respect to
gifted property ever passed to the appellant
and hence, the same was not binding on him.
The defendant after filing his written
statement moved an application under Order 7
Rule 11 for rejection of the plaint on the
ground that the suit was clearly barred by law
of limitation. The learned Trial Court
rejected the application, on the ground, on
perusal of the record and other documents that
for determining the question of limitation,
oral evidence was required to be taken into
account.
29. It was held that the Court below had
materially erred in not rejecting the plaint
in exercise of powers under Order 7 Rule 11
CPC, noting that there was no dispute that the
Gift Deed was executed by the original
plaintiff himself along with his brother. The
Gift Deed was a registered Gift Deed. The
execution of the Gift Deed was not disputed by
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the plaintiff but it was a case of the
plaintiff that the Gift Deed was a showy Gift
Deed and therefore, the same was not binding
on him. The Hon'ble Apex Court observed that
approximately for nearly 22 years, neither the
plaintiff nor his brother claimed at any point
of time that the said Gift Deed was showy Deed
of Gift. One of the executants of the Gift
Deed being the brother of the plaintiff during
his lifetime never claimed that such Gift Deed
was a ostentatious Gift Deed. A suit was also
filed by the appellant-defendant for partition
against his brothers in which the plaintiff
was also joined as defendant no.10. The
summons of the suit was served to the
plaintiff, despite this fact, after about 2
years, he filed the suit. It was observed from
the averments made in the plaint that for
these 22 years, the suit property was
mortgaged by the appellant-original defendant
and Mortgage Deed was executed by the
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defendant. Thus, considering the averments
made in the plaint and the bundle of facts,
the Hon'ble Apex Court was of the view that by
way of clever drafting, the plaintiff has
tried to bring the suit within the period of
limitation which was otherwise barred by law
of limitation.
30. In Canara Bank (supra), the Hon'ble Apex Court
referring to the facts noted that the bank had
sanctioned and granted loan to the partnership
firm. The original borrower failed to repay
the loan amount, the bank filed an application
before Debt Recovery Tribunal against the
principal borrower, its partners as well as
against the guarantor. The Debt Recovery
Tribunal proceeded ex-parte against the
guarantor and decreed the loan amount in
favour of the appellant bank and against the
principal borrower as well as the guarantor.
The suit was filed against guarantor,
principal borrower and its partners and the
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appellant bank, for declaration that the order
passed by the Debt Recovery Tribunal was non-
est, ultra vires, null and void and not
binding on the suit property with a
consequential relief of permanent injunction
restraining the recovery officer from
interfering with the peaceful possession and
enjoyment of the suit property, by an action
as against the suit property, by way of
attachment, sale or otherwise. The appellant
bank filed an application under Order 7 Rule
11(d) of CPC contending that the suit was not
maintainable as there was specific bar of
jurisdiction under Sections 18 and 20(1) of
the Recovery of Debts due to Banks and
Financial Institutions Act, 1993. The Trial
Court dismissed the application and refused to
reject the plaint. Aggrieved by the order, the
bank preferred Revision Application before the
High Court. The High Court dismissed the
Revision Application and confirmed the order
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passed by the Trial Court. The Hon'ble Supreme
Court held that the allegation of fraud was
with respect to the Partnership Deed while no
such allegation was with respect to the
mortgage created and deed of guarantee
executed by the guarantor. Reliance was placed
upon the judgment and order passed by the
Magistrate holding the partners of the firm
guilty. However, it was noted that the said
order of the Magistrate made no reference to
the deed of guarantee and/or the mortgage
created by the guarantor. The bank was not a
party to the said proceedings and considering
the pleadings/averments in the suit, the
allegation of fraud was found to be illusory
which was only with a view to avoid the
judgment and decree passed by the Debt
Recovery Tribunal. The Hon'ble Supreme Court
held that the suit was vexatious with the
malafide intention. The plaintiff was claiming
right, title and interest on the basis of the
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sale deed executed by the guarantor as power
of attorney holder of the original owner. The
averments in the plaint that they had
purchased the suit property from their vendor
was factually incorrect, while the sale deed
was executed by the guarantor as power of
attorney holder of the original vendor. When
the said guarantor filed interlocutory
application before the Debt Recovery Tribunal
to quash and set aside the ex-parte judgment
and decree passed by the Debt Recovery
Tribunal, he failed to disclose that he had
already sold the property in favour of the
original plaintiff. The sale consideration was
alleged to have been paid in cash. The Hon'ble
Supreme Court observed that before execution
of the sale deed, the land was already put as
a security by way of mortgage with the
appellant bank by the guarantor. Thus, overall
facts and circumstances of the case showed
that the suit filed by the plaintiff was
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vexatious, frivolous and was nothing but an
abuse of process of law and court. It was also
noted that the suit was filed after a period
of 15 years from the date of mortgage and
after a period of 7 years from the date of
decree by the Debt Recovery Tribunal. The fact
that the plaintiff came to know about the
mortgage and the judgment and decree by the
Debt Recovery Tribunal only six months back
but the said averment was considered to be too
vague while nothing was averred as to when and
how the plaintiff had knowledge about the
judgment and decree of the Debt Recovery
Tribunal and only with a view to bring the
suit within the period of limitation, vague
averments were made, while it was observed
that on such vague averments, the plaintiff
could not move out of the law of limitation.
It was thus noted that there must be specific
plea and averment in the plaint on limitation.
The plaint was found to be vexatious,
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frivolous and meritless and nothing but an
abuse of process of law and court.
31. In Dahiben's case (supra), the suit land was
old tenure agriculture land of the ownership
of the plaintiff. The land in question was
restrictive tenure as per Section 73AA of the
Land Revenue Code. The plaintiff had filed an
application before the Collector for
permission of sale to respondent no.1. The
Collector after verifying the title of the
plaintiff permitted the sale of the suit
property and fixed the sale price as per the
Jantri issued by the State Government. The
Collector granted permission for the sale,
subject to the terms and conditions as per
Section 73AA of the Land Revenue Code. After
the permission from the Collector, the
plaintiff sold the suit property to respondent
no.1 who had issued 36 cheques towards payment
of sale consideration. The respondent no.1
subsequently sold the suit property to
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respondents no.2 and 3 vide registered sale
deed. The plaintiff filed Special Civil Suit
against the original purchaser impleading the
subsequent purchasers, praying that the sale
deed be canceled and be declared as illegal,
void, ineffective and not binding on them on
the ground that the sale consideration fixed
by the Collector was not paid by the
respondent no.1 in entirety. Respondents no.2
and 3 filed an application for rejection of
the plaint contending that the suit filed by
the plaintiff was barred by limitation and
that no cause of action had been disclosed in
the plaint.
32. It was held by the Hon'ble Supreme Court that
the remedy under Order 7 Rule 11 is an
independent and special remedy, wherein the
Court is empowered to summarily dismiss the
suit at the threshold without proceeding to
record the evidence and conducting the trial
on the basis of the evidence adduced, if it is
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satisfied that the action should be terminated
on any of the grounds contained in the
provision. The underlying object of Order 7
Rule 11(a) is that if in a suit, no cause of
action is disclosed or the suit is barred by
limitation, under Rule 11(d), the Court would
not permit the plaintiff to unnecessarily
protract the proceedings in the suit. In such
a case, it would be necessary to put an end to
the sham litigation so that further judicial
time is not wasted.
33. Further, it was held that even if the
averments of the plaintiff are taken to be
true, the entire sale consideration had not in
fact been paid, it could not be a ground for
cancellation of the sale deed. The plaintiff
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. The suit filed by the
plaintiff was vexatious, meritless and did not
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disclose a right to sue and therefore, it was
held that the Trial Court rightly exercised
the power under Order 7 Rule 11.
34. In the case of Bhau Ram (supra) relied upon by
learned advocate Mr. Pahwa, it has been held
that only averments in the plaint can be
looked into while deciding the application for
rejection of plaint. Pleas taken by the
defendant in written statement are not
relevant. The order of the Trial Court was set
aside by the first Appellate Court on the
ground that the Trial Court had taken into
consideration pleas from the written statement
of the defendant which is not permissible
under Order 7 Rule 11 of CPC and the High
Court in the Second Appeal confirmed the
judgment of the first Appellate Court. It is
settled law by the Apex Court in various
decisions that while considering an
application under Order 7 Rule 11 of CPC, the
court has to examine the averments in the
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plaint and the pleas taken by the defendant in
the written statement would be irrelevant vide
C. Natrajan v. Ashim Bai, (2007) 14 SCC, 183,
Ram Prakash Gupta v. Rajiv Kumar Gupta, (2007)
10 SCC 59, Hardesh Ores (P) Ltd. v. Hede and
CO., (2007) 5 SCC 614, Mayar (H.K.) Ltd. v.
Vessel M.V. Fortune Express, (2006) 3 SCC 100,
Sopan Sukhdeo Sable v. Assistant Charity
Commissioner, (2004) 3 SCC 137 and Saleem Bhai
v. State of Maharashtra, (2003) 1 SCC 557. The
above view has been reiterated in the decision
of Church of Christ Charitable Trust &
Educational Charitable Society v. Ponniamman
Educational Trust, (2012) 8 SCC 706.
35. In the case of Chhotanben (supra), plea as to
the rejection of the plaint on the ground of
suit being barred by limitation was raised. It
was held that it was a triable issue in fact
situation of the case and the plaint could not
be rejected at the threshold in exercise of
powers under Order 7 Rule 11(d) of the CPC. In
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the suit, defendant no.5 filed an application
under Order 7 Rule 11(d) CPC for rejection of
plaint on the ground that the suit was barred
by limitation having been filed after 17 years
of execution of the sale deed in question. The
application was dismissed by the Trial Court
opining that the said contention was not
tenable as the factum of suit being barred by
limitation was a triable issue considering the
averments made in the plaint. It was held that
while answering the matter in issue in context
of the application under Order 7 Rule 11(d)
CPC what is relevant is to examine the
averments made in the plaint. The plaint is
required to be read as a whole. The defence
available to the defendants or the plea taken
by them in the written statement or any
application filed by them cannot be the basis
to decide the application under Order 7 Rule
11(d). Only the averments in the plaint are
germane.
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36. In Bardoli Shreerang Exhibitors Private
Limited (supra), the Division Bench of this
Court had an occasion to deal with an order
allowing the plaint to be rejected under Order
7 Rule 11(a) of the CPC. The application was
preferred by defendants no.5 to 7 for
rejection of plaint on the ground of
limitation. It was held that the plaint could
not have been rejected on the said ground, as
the plaintiff in no uncertain terms has
pleaded in plaint that he came to know about
the execution of sale deed only when
defendants no.7 and 8 filed their written
statement. It was observed that when the
question of limitation is a mixed question of
fact and law and suit does not appear to be
barred by limitation on the face of it, then
facts necessary to prove limitation must be
pleaded. Plea of limitation is a mixed
question of law and fact. Jurisdiction of
court to take action under Order 7 Rule 11(d)
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of CPC can arise only in case where pleadings
in plaint are sufficient to disclose the bar
to suit and not otherwise. It was further held
that the court below has failed to maintain
the fine distinction between the plea that
there was no cause of action for suit and plea
that plaint does not disclose a cause of
action and for the limited purpose of
determining the question whether plaint is to
be rejected under Order 7 Rule 11(a) of CPC or
not, the averments in plaint are only to be
looked into. The Division Bench while summing
up the discussion has held in Paragraph 44 as
under:-
"44. We sum up our final
conclusions:
(1) Undoubtedly, Order 7, Rule
11(d) of the CPC provides that the
plaint shall be rejected in case
when the suit appears from the
statement in the plaint to be
barred by any law. The object
behind the said provision of law is
to avoid manifestly vexatious and
meritless litigation and to protect
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the parties being unnecessarily
harassed by others. The clause (d)
of Rule 11 of the Order 7 of the
CPC would apply to the cases when
it would reveal from the contents
of the plaint that the suit is
barred. In other words, in order to
enable the court to arrive at the
conclusion that the suit filed by
plaintiff is barred, the pleadings
in the plaint should apparently
disclose the facts revealing the
bar to the suit instituted by the
plaintiff. The conclusion under
clause (d) regarding the bar to the
suit cannot be arrived at on the
basis of materials extraneous to
the pleadings in the plaint. The
jurisdiction of the court to take
action under Order 7, Rule 11(d) of
the CPC can arise only in case
where the pleadings in the plaint
are sufficient to disclose the bar
to the suit, and not otherwise. Of
course, the jurisdiction can be
exercised at any stage of the suit,
however, the decision under Order
7, Rule 11(d) of the CPC has to be
on the basis of the pleadings in
the plaint.
(2) A plaint can be rejected under
the said provision of law only if
the plaint on the face of it
discloses the same to be barred by
any law in force, and not by
referring to the materials which
are sought to be placed on record
by the defendant in answer to the
plaint. In case the defendant
requires to refer to any material
other than the plaint, certainly
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such an exercise is permissible by
way of leading evidence after
framing issues and satisfying the
court about the non-maintainability
of the suit. But the same exercise
cannot be done under Order 7, Rule
11(d) of the CPC. On account of any
material being available with the
defendant to prove that the suit
being not maintainable, the same
cannot be a ground to non-suit the
plaintiff by exercise of power
under Order 7, Rule 11(d) of the
CPC. In order to get the necessary
relief on the basis of such
materials, the defendant will have
to lead necessary evidence by
producing such materials on record
in accordance with the provisions
of law and only thereupon the court
can take appropriate decision as
regards the objection sought to be
raised by the defendant regarding
non-maintainability of the suit."
37. The main challenge given to the suit was on
the ground that the suit has been filed by the
power of attorney and there has been delay of
42 years in filing the suit and the suit would
be hit by the Limitation Act because of long
period of dormancy. The plaintiff was aware of
the fact of the proceedings before the revenue
authority, to contend the claim of minority to
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bring the suit within limitation and pleading
ignorance about the sale deed on the ground
that the plaintiff is staying in a foreign
country and had no knowledge about the same is
to misguide the Court, and the plaintiff has
not come with clean hands and the real facts
are being suppressed. In view of the facts
pleaded in the plaint, the learned Judge has
rightly held that all those factors are
required to be decided by the evidence on
record since it becomes a mixed question of
facts and law, whether there has been delay to
be hit by the Limitation Act could only be
decided by way of evidence and it could be
only after the framing of issues.
38. The learned Tribunal has also rightly
concluded about the cause of action to be true
or not, to be considered only after the
evidence gets recorded. The plaintiff has
pleaded that the entry no.6782 as mutated on
10.4.2009 by defendants no.1 to 4 as heirs of
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the deceased - Ayub Ibrahim Desai is false and
illegal, and the entry no.2786 is originally
false, illegal and without any title and
therefore, the heirs would not gain any title.
Hence, the sale deed by defendants no.1 to 4
in favour of the defendant no.5 would not give
any title which is under connivance and since
the entry from its inception is false and
illegal, defendant no.5 would not receive any
legal title and right and that defendant no.5
is not a bonafide purchaser.
39. The plaintiff has claimed irregularities and
illegalities in registration of the revenue
entries and plea has been taken that no
permission has been received from the District
Court to sell the minor's property. Plaintiff
had left the country when he was minor and
settled in South Africa and on knowing about
these entries, he was constrained to file the
suit through the power of attorney. These
facts are required to be proved. The
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contending defendants have also to prove their
right, title and interest on the property
where the challenge is given to the revenue
entry alleging that Ayub Ibrahim Desai cannot
be the co-owner of the property as the parties
are not related to each other and further they
are governed by Muslim personal law. How the
names of the minors came to be deleted from
the revenue record and the name of Ayub
Ibrahim Desai - ancestor of defendants no.1 to
4 was entered by way of revenue entry are the
facts which requires clarification. The
plaintiff contends that the alleged entries
are illegal and has pleaded that the names of
the minors were deleted in connivance with the
revenue authorities and such undue advantage
was taken, since the plaintiff was minor. The
revenue entries are urged to be null and void
stating that it gives no right, title and
interest.
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40. Entry no.2259 dated 28.10.1971 certified on
25.12.1971 is in connection to suit property
purchased by father of the plaintiff and
defendants no.6 to 8 by the registered sale
deed dated 24.6.1971. Ayub Suleman Sidat was
owner in possession of the land.
41. Entry no.2260 dated 28.10.1971 certified on
25.12.1971 are the same dates, when the sale
deed entry came to be mutated, as father Ayub
Suleman Sidat by oral gift, gave the land to
plaintiff and defendants no.6 to 8 and the
guardian for the minors Yakub Yusuf Khanji was
in actual possession on behalf of the minors.
42. The controversial revenue entry no.2786 dated
2.3.1976 questions the name of Ayub Ibrahim
Desai, the father of defendants no.1 to 4. The
entry notes the property having gone to Ayub
Ibrahim Desai in partition which was shown to
be running in the name of Salim Ayub Sidat
with the guardian Yakub Yusuf Khanji. The main
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contention is that Ayub Ibrahim Desai is not
related to plaintiff's family, this disputed
fact is coupled with the family property
guided by Muslim Personal Law, the property of
minor is shown to be in the share in Ayub
Ibrahim Desai by way of partition. The
allegation is that the entry is in connivance
and in collusion with revenue authorities.
43. The entry no.6782 is the succession entry of
defendants no.1 to 4 dated 10.4.2009 after the
death of the father Ayub Ibrahim Desai, while
the very entry in the name of father Ayub
Desai is disputed. Thereafter, the suit
property was sold to defendant no.5, who has
to prove that he is a bonafide purchaser.
44. In Special Civil Application no.7135 of 2017,
it has been observed in Paragraph 4 as under:-
"4. If there is a sale deed and on
the strength of the same, if any
entry is mutated, then there is
nothing wrong in it. At the time of
the mutation of the entry on the
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basis of the sale deed, the
authority concerned need not to go
into the legality and validity of
the transaction. If the applicants
are claiming any independent right,
title or interest in the suit -
property and claim to be in the
possession of the suit property,
then they need to file Civil Suit
before the competent authority and
obtain an appropriate relief. All
that, I can say that in future, if
the applicants file any suit before
the Civil Court, then the disputed
entries shall be subject to the
final outcome of such suit deciding
the rights of the parties
concerned. At this point of time, I
see no good reason to disturb the
concurrent findings of four revenue
authorities. This application
therefore, is disposed of with the
above observation."
45. The plaintiff proposes to adjudge his legal
right on the basis of the fact of suit
property purchased by his father from
Dahyabhai Becharbhai by way of registered sale
deed. If an individual under colour of the
law, does an act which does not reflect its
legality, then other who is affected by such
act has right to challenge where the legality
of some proceeding is the matter in dispute
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between the two parties, he who maintains its
legality, and seeks to take advantage of it,
cannot rely upon the proceeding itself, as a
bar to the adverse party. The plaintiff
questions revenue entry nos.2786 and 6782 as
void and illegal ab initio. Latin maxim thus
states QUOD AB INITIO NON VALET IN TRACTU
TEMPORIS NON CONVALESCIT - literally means,
that which was originally void, does not by
lapse of time become valid. Any number of
revenue entries will not validate, an act,
which does not find its legal existence. The
plea of limitation would not support the
defendant concerned, if he cannot prima facie
prove his legal right. No one can take
advantage by his own wrong.
46. The plaintiff challenges the revenue entries
stating that the same have not been done in
legal manner, the plaintiff proposes to bring
proof to the contrary and by bringing
evidence, the presumption of thing done
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correctly can be rebutted. The plea of
limitation in light of facts as pleaded would
essentially become a mixed question of facts
and law.
47. The contention was also raised that the cause
of action as pleaded in the plaint is
illusionary and to misguide the Court, since
the plaintiff was well aware of the RTS
proceedings where defendants no.6 to 8-
brothers of plaintiff and defendant no.9, the
uncle as well as defendant no.5, the
purchaser, the present revisionist were the
parties. It is contended that the plaintiff
cannot feign ignorance. The proceeding before
the Mamlatdar, Mangrol, Surat was filed by
defendant no.9 against defendants no.1 to 4 as
heirs of Ayub Ibrahim Desai and defendant
no.5, the present revisionist, wherein the
order was delivered on 24.5.2010, while in RTS
Appeal 216/11, 286/11 and 312/11, except
plaintiff, all the defendants are parties,
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wherein the judgment was declared on
12.8.2013. Before S.S.R.D., by order dated
8.7.2016, Revision Application no.191/13
decided on 12.12.2014, came to be affirmed.
Against that, the parties aggrieved were in
Special Civil Application no.7135/2017 and it
was kept open to seek relief through Civil
Court. The Special Civil Suit is numbered as
21/18. Section 11 of the Bombay Revenue
Jurisdiction Act, 1876 puts a bar on the Civil
Court to entertain any suit against Government
on account of any act or omission of any
revenue officer unless the plaintiff first
proves that he has exhausted the proceedings.
In the present case, to the facts on hand,
whether the knowledge of brothers of plaintiff
can be attributed to the plaintiff is also a
question of fact, to decide any plea of
illusive cause of action.
48. The land in question has been acquired by the
acquisition authority under the National
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Highways Act, 1956. The acquisition would not
effect the suit since under Section 3H(4) of
the National Highways Act, 1956, the Principal
Civil Court of original jurisdiction would
determine the apportionment of the
compensation amount to the person legally
entitled for the same.
49. Both the parties would be required to prove
their right on the property which would only
be possible after the opportunity is granted
to place the evidence on record.
50. In view of the proposition of law as laid down
in the referred judgments, it is an absolute
case where the parties are required to produce
evidence for adjudication of their respective
claims.
51. The order of the learned Judge is just and
proper. The observations made, while rejecting
the application, for rejection of plaint is in
consonance to the principles of law laid down
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in the referred judgments.
52. In the result, the application stands
rejected. Connected applications, if any,
stand disposed of. However, there shall be no
order as to costs.
(GITA GOPI,J)
Maulik
