Gujarat High Court
Prachi Mahendrabhai Patel vs Laljibhai Nathabhai Patel on 7 January, 2023
Bench: A.J.Desai
C/FA/5178/2019 ORDER DATED: 07/01/2023
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/FIRST APPEAL NO. 5178 of 2019
With
CIVIL APPLICATION (FOR STAY) NO. 1 of 2019
In R/FIRST APPEAL NO. 5178 of 2019
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PRACHI MAHENDRABHAI PATEL
Versus
LALJIBHAI NATHABHAI PATEL
==========================================================
Appearance:
MR NM KAPADIA(394) for the Appellant(s) No. 1
for the Defendant(s) No. 1,10,2,3,4,5,6,9
MR ANSHIN DESAI, SR. ADVOCATE with MR AMRISH K PANDYA(3219) for
the Defendant(s) No. 7,8
MR. ASHIT J VYAS(6323) for the Defendant(s) No. 7,8
SHRINEEL M SHAH(9374) for the Defendant(s) No. 7,8
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CORAM:HONOURABLE MR. JUSTICE A.J.DESAI
and
HONOURABLE MR. JUSTICE RAJENDRA M. SAREEN
Date : 07/01/2023
ORAL ORDER
(PER : HONOURABLE MR. JUSTICE A.J.DESAI)
[1.0] By way of present appeal under Section 96 read with Order
XLI of the Code of Civil Procedure, 1908 (hereinafter referred to
as "CPC"), the appellant herein - original plaintiff No.1 has
challenged the judgment and decree dated 05.04.2019 passed
below application Exh.35 by the learned 5 th Additional Senior Civil
Judge, Gandhinagar (hereinafter referred to as "trial Court") in
Special Civil Suit No.166/2016 (hereinafter referred to as "the
aforesaid suit") by which the learned trial Court has accepted the
application Exh.35 filed in the aforesaid suit filed by the
respondent Nos.7 and 8 herein - original defendant Nos.7 and 8
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(hereinafter referred to as "original defendant Nos.7 and 8")
under Order VII Rule 11 of the CPC and dismissing the suit on the
ground that the suit has been filed beyond the prescribed period
of limitation as provided under Articles 56, 58 and 59 of the
Schedule to the Limitation Act, 1963 (hereinafter referred to as
"Limitation Act").
[2.0] A caveat was filed by the original defendant Nos.7 and 8
way back in the year 2019. Thereafter, the matter has been listed
time and again and it seems that no notice has been issued in the
present First Appeal.
[3.0] The Registry has received Record & Proceedings of Special
Civil Suit No.166/2016 which have been perused by this Court.
[4.0] The case put forward by the original plaintiff No.1
alongwith other plaintiffs i.e. respondent Nos.9 and 10 herein at
the time of filing of the suit is as under:-
[4.1] That, the land in question i.e. Survey No.9/1 admeasuring
2934 Sq. Meter situated at Mouje Chandkheda, Taluka Daskroi
and District Ahmedabad (hereinafter referred to as "suit
property") belonged to grandfather viz. Nathabhai Naranbhai
Patel of the appellant herein. Subsequent to death of
grandfather of the appellant herein, names of his legal heirs
came to be mutated in the revenue record. One of the legal heirs
i.e. original defendant No.5 viz. Mahendrabhai Nathabhai Patel,
who happens to be the father of the present appellant and also
the father of minor Darshil (brother of appellant herein) and
husband of Ashaben alongwith co-owners executed an
C/FA/5178/2019 ORDER DATED: 07/01/2023
Agreement to Sell with original defendant Nos.7 and 8 on
12.10.2009, which was registered with Sub-Registrar,
Gandhinagar vide Entry No.11358. Thereafter, all the owners of
the suit property executed a registered sale deed on 25.04.2011
in favor of original defendant Nos.7 & 8 and the same was also
registered with the concerned office at Sr. No.5797.
[4.2] It is the case of the present appellant alongwith her minor
brother and their mother, who had filed the aforesaid suit
namely Ashaben wife of Mahendrabhai Patel that when they
checked the revenue record in the year 2016 about the suit
property, they came to know that the suit property was sold in
the year 2011 though all of them had share in the suit property.
Having come to know about the same, in the year 2016, the suit
came to be filed.
[4.3] In response to the summons issued by the learned trial
Court, except original defendant Nos.7 and 8, none of the
defendants including the father of the appellant herein,
appeared before the Court or filed any written statement. The
original defendant Nos.7 and 8 filed application Exh.35 under
Order VII Rule 11 of the CPC raising contention that the suit is
hopelessly barred by the provisions of the Limitation Act and
more particularly barred by Articles 56, 58 and 59 of the Schedule
to the Limitation Act. No reply was filed by the original plaintiffs
to the said application Exh.35.
[4.4] The learned trial Court after examining the plaint as a
whole, considering the cause of action stated by the original
plaintiffs and also considering the prayers sought for by the
C/FA/5178/2019 ORDER DATED: 07/01/2023
original plaintiffs, held that the suit has been filed beyond the
prescribed period of limitation of 3 years as per Article 58 of the
Schedule to the Limitation Act.
Hence, present First Appeal.
[5.0] Learned advocate Mr. N.M. Kapadia appearing for the
appellant herein - original plaintiff No.1 would submit that the
learned trial Court has committed an error in accepting the
application as if it falls under Article 58 of the Schedule to the
Limitation Act. Infact, the case would fall under Article 60 of the
Schedule to the Limitation Act since the appellant, who is the
daughter of original defendant No.5, had attained the age of
majority only on 30.09.2015 and has filed the suit in the year
2016 i.e. on 07.09.2016. He would submit that since the father of
the appellant herein, who was guardian at the time of transfer of
the suit property, had sold the share of the suit property of the
appellant herein, appellant would be entitled for the same and
when she became major, she has filed the aforesaid suit within
the period of three years from the date of her attaining the age
of majority.
On query put by this Court about such contention raised
anywhere in the proceeding before the learned trial Court or
argued before the learned trial Court, learned advocate
appearing for the appellant has fairly submitted that issue of
applicability of Article 60 of the Schedule to the Limitation Act
had neither been raised nor had been argued before the learned
trial Court however, he would submit that this being a legal issue,
can be raised in the appeal since it is a continuation of
proceeding of the suit. In support of his said submission, he has
relied upon the decision of the Hon'ble Apex Court in the case of
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B.V. Nagesh and Another vs. H.V. Sreenivasa Murthy reported
in (2010) 13 SCC 530. He would submit that the Hon'ble Apex
Court has held that the First Appeal is a valuable right of parties
and the Court can hear the parties on question of fact and law
both and therefore, this Court can consider this aspect and
reverse the order impugned in the First Appeal, which is based as
if the case is covered under Article 58 of the Schedule to the
Limitation Act.
[5.1] He would further submit that the Hon'ble Apex Court in the
case of Chhotanben and Another vs. Kiritbhai Jalkrushnabhai
Thakkar and Others reported in (2018) 6 SCC 422 has held that
if the Court finds that pleadings do disclose that there are triable
issues, the plaint cannot be rejected under Order VII Rule 11 of
the CPC. He would submit that the suit has been filed by the
appellant herein when she came to know about the sale deed
only in the year 2016. He would submit that even otherwise for
filing of the suit for cancellation of sale deed etc., the knowledge
is relevant for filing the suit within the prescribed period of
limitation. He would submit that a specific statement has been
made in the plaint that she came to know about the sale deed
when she examined the revenue record. He, therefore, would
submit that appeal be allowed and the order impugned in the
present First Appeal be quashed and set aside.
[6.0] On the other hand, learned Senior Advocate Mr. Anshin
Desai assisted by learned advocate Mr. Amrish Pandya appearing
on caveat on behalf of the original defendant Nos.7 and 8 has
vehemently opposed the present appeal. By taking us through
the plaint and particularly the cause of action narrated therein
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and the prayers made, he would submit that there is no whisper
by the appellant herein about becoming her major in the year
2016 and has filed the suit within the prescribed period of
limitation after becoming major on the said date. He would
submit that it is a simplicitor suit of collusive nature at the
instance of the children and wife of one of the co-owners i.e.
respondent No.5 - Mahendrabhai Nathabhai Patel, who
happened to be the father of the appellant herein (original
plaintiff No.1) and original plaintiff No.2 (minor brother of
appellant herein) and original plaintiff No.3, who is wife of the
original defendant No.5. He would submit that all the co-owners
whose names were mutated in the revenue record have initially
executed the registered Agreement to Sell in the year 2009 and
thereafter, the suit property was sold by registered sale deed
and entries were mutated in the revenue record way back on
25.04.2011. He would submit that for the first time the
contention has been raised before this Court about applicability
of Article 60 of the Schedule to the Limitation Act. He would
submit that the original plaintiff No.1 had not stated in the plaint
that after attaining the age of majority, the original plaintiff No.1
has filed the suit for her share. This contention was not also
raised by the appellant herein - original plaintiff No.1 or any of
the original plaintiffs by filing the reply to the application Exh.35
filed under Order VII Rule 11(d) of the CPC by original defendant
Nos.7 and 8. He would submit that it is well settled principle of
law that while dealing with the case particularly Order VII Rule 11
of the CPC, reading the plaint as a whole is required to be
considered. He would submit that the suit which has been filed
for the family members through the power of attorney holder is
smartly drafted however, have miserably failed to narrate the
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relevant and important aspects in the plaint. By relying upon a
decision of the Hon'ble Apex Court in the case of Raghwendra
Sharan Singh vs. Ram Prasanna Singh (Dead) By Legal
Representatives reported in (2020) 16 SCC 601, he would
submit that clever drafting of a plaint as to avoid the mention of
those circumstances by which suit stood barred by limitation
would not bring the case within the prescribed period of
limitation. He would submit that the appellant herein as well as
other original plaintiffs have not specifically stated any cause of
action as to when and how they came to know about the sale
deed which was registered way back in the year 2011. By relying
upon the unreported decision of this Court in the case of
Kiranbhai Motibhai Patel Lh of Decd vs. Suraj Cooperative
Housing and Commercial Society Ltd. rendered in First Appeal
No.335 of 2022, he would submit that in the said decision, this
Court alongwith other decisions has considered the decision of
Hon'ble Apex Court in the case of Dahiben vs. Arvindbhai
Kalyanji Bhanusali (Gahra) Dead through Legal
Representatives and Others reported in (2020)7 SCC 366 and
would submit that no case is made out to entertain the present
appeal.
[6.1] Learned Senior Counsel Mr. Desai appearing on behalf of
the respondent Nos.7 and 8 would submit that as far as the
judgment relied upon by learned advocate Mr. N.M. Kapadia
appearing for the appellant on the case of Chhotanben and Anr.
(Supra) is concerned, same would not be applicable to the facts
of the present case. He would submit that it was held by the
Hon'ble Apex Court in the case that though the suit was filed
beyond the prescribed period of limitation, the same should not
C/FA/5178/2019 ORDER DATED: 07/01/2023
have been rejected below application filed under Order VII Rule
11 of the CPC in view of the fact that specific allegations were
made by the original plaintiffs that the suit property in which
they had share was sold by fraud and forgery applying their
bogus thumb impressions and in such circumstances, it was held
that the case requires a full-fledged trial. Apart from this aspect,
he has relied upon a decision of the Hon'ble Apex Court in the
case of Sunder Das and Others vs. Gajananrao and Others
reported in (1997) 9 SCC 701 and would submit that even
otherwise if the property is sold by the Karta of the family, which
is the case in the present matter (since original defendant No.5
was the father of original plaintiff Nos.1 & 2 and husband of
original plaintiff No.3), such suit can be entertained only on the
ground of illegality having been committed in selling the
property or a fraud was committed to dupe the rights of other
family members. He would submit that no such contentions have
been raised in the plaint by the appellant herein as well as other
original plaintiffs. Relying upon the decision of Hon'ble Apex
Court in the case of Dahiben (Supra), he would submit that
appeal is required to be dismissed on this ground also.
[7.0] We have heard learned Counsel appearing for the
respective parties at length. We have also perused the Record &
Proceedings of the aforesaid suit received from the learned trial
Court.
It is not in dispute that original defendant No.5 -
Mahendrabhai Nathabhai Patel is father of appellant herein,
respondent No.9 (original plaintiff No.2) and husband of
respondent No.10 (original plaintiff No.3). That, the suit property
originally belonged to Nathabhai Naranbhai Patel. Subsequent to
C/FA/5178/2019 ORDER DATED: 07/01/2023
his death, the father of the appellant herein and original plaintiff
No.2 and husband of original plaintiff No.3 became co-owners of
the suit property and their names were mutated in the revenue
record. That, the respondent Nos.1 to 5 herein themselves and
respondent No.5 through his power of attorney holder i.e.
respondent No.6 executed an Agreement to Sell on 12.10.2009,
which was registered with the concerned office at Sr. No.11358.
Thereafter, all of them have executed a registered sale deed on
25.04.2011, which is registered at Sr.No.5797 with Sub-Registrar,
Vadaj, Ahmedabad.
[7.1] Now, the case put forward by all the plaintiffs including the
appellant herein in the plaint is that the suit property being
ancestral one, all of them have share in the suit property and
they have been deprived of their share in the suit property by the
original defendant No.5 i.e. father of the appellant herein and
original defendant Nos.7 and 8. As per the say of the appellant,
the cause of action to file the suit is that the appellant came to
know about the sale deed of 2011 recently i.e. in the year 2016
when they examined the revenue record. The translated version
of cause of action referred to in paragraph 8 of the plaint, which
is supplied by the Translation Department, reads as under:
"(8) Apart from the above stated facts and premises,
as I the applicant being the heir qua direct succession
of the deceased Nathabhai Naranbhai Patel, the cause
of action has arisen on the grounds that the disputed
land being the ancestral property which continued in
the name of deceased Nathabhai Naranbhai Patel and
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later, when the names of Respondent no.1 to 5 came
to be admitted in the records on the basis of succession
rights, further when the Respondent no.1 to 5 in the
present case had executed an illegal, registered
Earnest Money Deed in favor of the Respondent no.7
and 8, when the Respondent no.1 to 5 had executed a
Power of Attorney Deed in favor of the Respondent
no.6, when the Respondent no.1 to 4 themselves and
the Respondent no.6 in capacity of the POA of
Respondent no.5 violated my rights and executed, in
collusion with each other, an illegal and a registered
Sale Deed in favor of the Respondent no.7 and 8, and
when I the plaintiff examined the land records and I
came to know about the executions of the registered
Earnest Money Deed and the registered Sale Deed.
Thereafter, as I the applicant is having legal
entitlement and interest in the disputed land, I
obtained copies of the documents. As the Respondent
no.1 to 4 themselves and the Respondent no.6 in
capacity of the Respondent no.5 have, in collusion with
each other, sold the disputed immovable property to
the Respondent no.7 and 8, the cause of action has
arisen within the jurisdiction of this Hon'ble Court."
If the above cause of action is perused, the present
appellant has not stated anything that she had become major in
the year 2015 and therefore, the suit which is filed in the year
2016 is within the prescribed period of limitation. Even there is
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no reply to the application Exh.35 filed by the original defendant
Nos.7 and 8 under Order VII Rule 11 of the CPC. Article 60 of the
Schedule to the Limitation Act which prescribe the period of
limitation reads as under:
60. To set aside a transfer of property made by the guardian or a
ward-
a. By the ward who has attained Three When the
majority years ward attains
majority
b. By the ward's legal
representative-
(i) When the ward dies within Three When the
three years from the date of years ward attains
attaining majority majority
(ii) When the ward dies before Three When the
attaining majority years ward attains
majority
As per the aforesaid Article, the suit can be filed on behalf
of the ward for the transfer of property within a period of three
years as and when the ward attains majority. However, there is
no case put forward by the present appellant before the learned
trial Court in the plaint or no contention is raised in response to
the application Exh.35 filed by original defendant Nos.7 and 8
and therefore, the learned trial Court has rightly dealt with the
provisions of Article 58 of the Schedule to the Limitation Act in
view of the prayers made by the appellant herein as well as other
original plaintiffs. It cannot be said that the learned trial Court
has committed any error in appreciating the applicability of
appropriate procedure. The translation of prayers made in the
aforesaid suit reads as under:
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"By instituting the present suit, it has been prayed that the
Hon'ble Court may be pleased to;
"(a) pass an order that I the applicant being the
legal heir of the deceased Nathabhai Naranbhai
Patel, I the applicant is vested with the interest in
the ancestral property, i.e. the agricultural land of
old tenure, measuring He.Aar.SqMt. 0-29-34 means
2934 square meter at Mauje Chandkheda Survey
No. 9/1 of Taluka Daskroi, at present, Taluka
Sabarmati of registration district Ahmedabad and
sub district Ahmedabad-2 (Vadaj).
(b) pass a decree, in the interest of justice,
against the Respondents in the present case that, as
I the applicant being the legal heir of the deceased
Nathabhai Naranbhai Patel, all the agreements, i.e.
the registered Earnest Money Deed, the Power of
Attorney Deed and the registered Sale Deed, be
declared as illegal and null and void, means the
registered Earnest Money Deed executed by the
Respondent no.1 to 5 in favor of the Respondent
no.7 and 8, registered at Entry no. 11358 dated
12/10/2009 before the Office of Sub Registrar,
Gandhinagar and the notarized Power of Attorney
Deed dated 12/10/2009 executed by the
Respondent no.1 to 5 in favor of the Respondent
no.6 and the Registered Sale Deed No. 5797 dated
25/04/2011 executed by the Respondent no.1 to 4
in-person and the Respondent no.6 in capacity of
POA of the Respondent no.5 before the Office of
Sub Registrar, Vadaj, Ahmedabad, with regard to
the ancestral property, i.e. the agricultural land of
old tenure, measuring He.Aar.SqMt. 0-29-34 means
2934 square meter at Mauje Chandkheda Survey
No. 9/1 of Taluka Daskroi, at present, Taluka
Sabarmati of registration district Ahmedabad and
sub district Ahmedabad-2 (Vadaj), be quashed and
set aside.
(c) pass a permanent injunction in favor of I the
applicant to the effect that, I the applicant being
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the rightful heir of the deceased Nathabhai
Naranbhai Patel, the ancestral property belonging
to I the applicant, i.e. the agricultural land
measuring He.Aar.SqMtr 0-29-34 means 2934
square meter at Mauje Chandkheda Survey No. 9/1,
Taluka Daskroi, at present, Taluka Sabarmati,
Registration District Ahmedabad, Sub District
Ahmedabad-2 (Vadaj), which has been conveyed, to
the Respondent no.7 and 8, by virtue of an illegal
Sale Deed, registered at Sale Deed No.5797 on
25/04/2011 before the Office of Sub Registrar,
Vadaj, Ahmedabad-2 and executed in collusion with
each other by the Respondent no.1 to 4 in-person
and the Respondent no.6 in capacity of the POA of
the Respondent no.5 and on the basis thereof, as
the mutation entry in the Revenue Records has been
effected, the Respondent no.7 and 8, including their
heirs, successors, ancestors, assignee etc., be
refrained from conveying the subject property to
any person, institute or body through transfer,
assign, mortgage, gift, leave and license or in any
other manner which may change the title of the
subject property."
[7.2] It is true that the Hon'ble Apex Court in the case of B.V.
Nagesh & Anr. (Supra) has held that the First Appeal is a
valuable right of the party however, the specific provision of
Order VII Rule 11 of the CPC gives power to a Court to dismiss
the suit without trial if it is barred under the said provision and
therefore, in the present case, the above factual aspect makes it
clear that averments made in the plaint, cause of action referred
to hereinabove and the prayers made in the plaint makes it clear
that the suit was barred by the law of limitation and particularly
Article 58 of Schedule to the Limitation Act. In our considered
opinion, in absence of any contention raised about applicability
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of Article 60 of the Schedule to the Limitation Act and that too in
absence of any averments either in the plaint or by way of any
other mode about bringing the case within the ambit of Article
60 of the Schedule to the Limitation Act, same cannot be
considered when the Appellate Court is deciding a case wherein
the suit is dismissed in exercise of powers purely under Order VII
Rule 11(d) of the CPC.
[7.3] The judgment of Hon'ble Apex Court in the case of
Chhotanben and Anr. (Supra) relied upon by the learned
advocate Mr. N.M. Kapadia appearing for the appellant herein is
also not applicable to the present case. It was a specific case of
the original plaintiff in the said case who claimed the share with
contention that forgery was made by other co-owners and in
such circumstances the Hon'ble Apex Court had held that it is a
triable case and plaint cannot be rejected under Order VII Rule 11
of the CPC. The Hon'ble Apex Court has specifically considered
the facts of the case and has held in paragraphs 14 and 15 as
under:
"14. After having cogitated over the averments in the
plaint and the reasons recorded by the Trial Court as
well as the High Court, we have no manner of doubt
that the High Court committed manifest error in
reversing the view taken by the Trial Court that the
factum of suit being barred by limitation, was a triable
issue in the fact situation of the present case. We say so
because the appellants (plaintiffs) have asserted that
until 2013 they had no knowledge whatsoever about
the execution of the registered sale deed concerning
their ancestral property. Further, they have denied the
thumb impressions on the registered sale deed as
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belonging to them and have alleged forgery and
impersonation. In the context of totality of averments
in the plaint and the reliefs claimed, which of the
Articles from amongst Articles 56, 58, 59, 65 or 110 or
any other Article of the Limitation Act will apply to the
facts of the present case, may have to be considered at
the appropriate stage.
15. What is relevant for answering the matter in issue
in the context of the application under Order VII Rule
11(d), is to examine the averments 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 VII Rule 11(d). Only the averments in the
plaint are germane. It is common ground that the
registered sale deed is dated 18th October, 1996. The
limitation to challenge the registered sale deed
ordinarily would start running from the date on which
the sale deed was registered. However, the specific
case of the appellants (plaintiffs) is that until 2013
they had no knowledge whatsoever regarding
execution of such sale deed by their brothers - original
defendant Nos.1 & 2, in favour of Jaikrishnabhai
Prabhudas Thakkar or defendant Nos.3 to 6. They
acquired that knowledge on 26.12.2012 and
immediately took steps to obtain a certified copy of the
registered sale deed and on receipt thereof they
realised the fraud played on them by their brothers
concerning the ancestral property and two days prior
to the filing of the suit, had approached their brothers
(original defendant Nos.1 & 2) calling upon them to
stop interfering with their possession and to partition
the property and provide exclusive possession of half
(1/2) portion of the land so designated towards their
share. However, when they realized that the original
defendant Nos.1 & 2 would not pay any heed to their
request, they had no other option but to approach the
court of law and filed the subject suit within two days
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therefrom. According to the appellants, the suit has
been filed within time after acquiring the knowledge
about the execution of the registered sale deed. In this
context, the Trial Court opined that it was a triable
issue and declined to accept the application filed by
respondent No.1 (defendant No.5) for rejection of the
plaint under Order VII Rule 11(d). That view commends
to us."
In our considered opinion, the facts of the case on hand are
totally different than the case relied upon by the learned
advocate appearing for the appellant.
[7.4] We are in agreement with the submission made by learned
Senior Counsel Mr. Desai about applicability of the decision of
the Hon'ble Apex Court in the case of Raghwendra Sharan Singh
(Supra). It has been held by the Hon'ble Apex Court in the said
decision that clever drafting of a plaint (which is even otherwise
lacking in the pleadings of the present case) would not bring the
case within the period of limitation.
[7.5] In our considered opinion, paragraphs 24, 24,2 and 24.4 of
the decision of Hon'ble Apex Court in the case of Dahiben
(Supra) is applicable to the facts of the present case.
[8.0] In view of above discussion, we do not find any merit in the
present First Appeal and we are in complete agreement with the
observations made by the learned trial Court. Hence, present
First Appeal is dismissed.
C/FA/5178/2019 ORDER DATED: 07/01/2023
In view of dismissal of First Appeal, Civil Application (For
Stay) also stands dismissed.
Record & Proceedings of the Special Civil Suit No.166 of
2016 be sent back forthwith to the concerned Court.
(A.J. DESAI, J.)
(RAJENDRA M. SAREEN, J.)
Ajay
