Gujarat High Court

Sejbai D/O Late Hussenmiya Bhaimiya W/O ... vs Lhr Of Late Kesarbhai D/O Late ... on 2 February, 2024

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     C/SA/480/2023                                       ORDER DATED: 02/02/2024

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          IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
                  R/SECOND APPEAL NO. 480 of 2023
                                With
             CIVIL APPLICATION (FOR STAY) NO. 1 of 2022
                 In R/SECOND APPEAL NO. 480 of 2023
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SEJBAI D/O LATE HUSSENMIYA BHAIMIYA W/O NASIRKHAN NAKUMIYA
                            TAK
                           Versus
    LHR OF LATE KESARBHAI D/O LATE HUSSENMIYA BHAIMIYA
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Appearance:
MR BHUVNESH GAHLOT(10286) for the Appellant(s) No. 1,1.1,1.2,1.3,1.4
for the Respondent(s) No. 1,2,3
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 CORAM:HONOURABLE MR. JUSTICE SANDEEP N. BHATT

                            Date : 02/02/2024

                             ORAL ORDER

1. The present Second Appeal is filed being aggrieved

and dissatisfied with the order and decree dated 22.4.2022

passed in Regular Civil Appeal No.40 of 2018 (Old Regular Appeal No.48 of 2016) passed by the learned Additional

District Judge, Patan @ Radhanpur, confirming the judgment

and decree dated 13.10.2016 passed below Exh.36 by the

learned Additional Civil Judge, Sami, District Patan, by

which the Regular Civil Suit No.30 of 2015 came to be

rejected under the provisions of Order 7 Rule 11(d) of the

Code of Civil Procedure, 1908 (`CPC' for short).

2. Heard learned advocate Mr.Gahlot for the

appellants.

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3. Learned advocate Mr.Gahlot has drawn my

attention towards the findings of the learned courts below

and has contended that the courts below have committed

gross error in law by perusing the documents other than the

plaint while considering the application under Order 7 Rule

11(d) of the CPC. He has further submitted that it is settled

law that the averments made in the plaint as a whole

should be considered. However, on query of the court, he has

submitted that the averments in the plaint means the factual

narration in the plaint, prayer clause cannot be considered as

the averments in the plaint for the consideration of the

application. He has further submitted that the plaint can be

rejected under Order 7 Rule 11(d) of CPC only in the case

where there is specific bar under the law. However, in the

present case, when the appellant came to know about such

transaction in the year 2007 by way of sale deed, in the

year 2010 by way of mutation entry and in the year 2015

when the respondent had come with the JCB and at that

point of time, upon inquiry, the appellant had come to know

about such documents and therefore immediately he

approached the appellate authority as well as the revenue

authority and the competent civil court by filing the

appropriate proceedings. He submitted that the limitation will

only start when the concerned parties came to know about

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the cause of action. He, therefore, submitted that the suit

which is dismissed on the ground of delay is bad as

knowledge of the appellant about the said facts are required

to be considered and from the date of knowledge, the suit is

filed within the prescribed time of limitation.

4. Learned advocate Mr.Gahlot further submitted that

the court could not have looked into any other documents

except the plaint and the averments in the plaint as a whole

should be considered and considering the submissions made

in the present case in the plaint, the suit is wrongly

dismissed by exercising powers under Order 7 Rule 11(2) of

the CPC and the lower appellate court has also dismissed

the appeal on erroneous ground.

5. Learned advocate for the appellant has also

submitted that the courts below have not properly dealt with

the various aspects while deciding the application below

Order 7 Rule 11 of CPC. He has further submitted that on

merits also, the learned courts below have not properly

looked into the matter as the suit property is forming part of

the ancestral property of the parties and possession and

occupation of the suit property was with the plaintiff only.

Therefore, the courts below have committed gross error and

he prays to admit this appeal by framing proper substantial

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question of law in view of the apparent error of law

committed by the courts below.

6. He relied on the judgment in the cases of the

Hon'ble Apex Court in the case of Sri Biswanath Banik V/s

Sulanga Bose reported in AIR 2022 SC 1519, Sopan Sukhdeo Sable and Others V/s Assistant Charity Commissioner and Others, reported in 2004(3) SCC 137 and Popat and Kotecha Property V/s State Bank of India Staff Association reported in 2005(7) SCC 510.

7. I have considered the submissions made at the

bar. I have also perused the impugned judgments passed by

the courts below and the plaint of the suit.

8. It transpires that the learned trial court as well

as the lower appellate court have given cogent and convincing

reasons in its findings starting from paragraphs 10 to 14.

Learned appellate court has rightly come to the conclusion

that the sale deed which is registered at serial no.1199 dated

4.12.2007 and revenue record also indicates that the entry to

this effect is entered in the year 2010. From the pleading of

the plaint, it transpires that the sale deed which is executed

at serial no.58 on 27.7.2010 pertains to suit land and

revenue entry is also affected in the year 2010. Learned

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courts below have come to the conclusion that both the sale

deeds were challenged in the prayer clause in the plaint

dated 4.12.2007 where the revenue entry is made in the year

2010 and sale deed dated 27.7.2010 for which the revenue

entry made in the year 2010, for which the suit is filed on

17.10.2015. The courts below have referred to the provisions

of Article 59, 110 and 58 of the Limitation Act which reads

as under:

59. To cancel or set Three years When the facts entitling aside an instrument or the plaintiff to have the decree or for the instrument or decree recission of a contract cancelled or set aside or the contract rescinded first become known to him.

110. By a person Twelve years When the exclusion excluded from a joint becomes known to the family property to plaintiff.

enforce a right to share therein

58. To obtain any other Three years When the right to sue declaration first accrues

The courts below have also relied on the judgment in the

case of Becharbhai Zaverbhai Patel V/s Jashbhai Shivabhai

Patel, reported in 2013(1) GLR 398, wherein it is held that "

As held by the Hon'ble Supreme Court in the case of Dilboo

(Smt.) (Dead) by L.R.s [2000(7) SCC 702] whenever the

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document is registered the date of registration becomes the

date of deemed knowledge and in other cases where a fact

could be discovered by due diligence then deemed knowledge

would be attributed to the plaintiff because a party cannot

be allowed to extend the period of limitation by merely

claiming that he had no knowledge."

9. The courts below, more particularly the lower

appellate court, have also dealt with the arguments of the

present appellant regarding the applicability of Articles 110,

58 and 59 of the Limitation Act and considering the fact

that the first sale deed which is executed in the year 2007,

second sale deed executed in the year 2010, revenue entry is

certified in the year 2010, the courts below have rightly come

to the conclusion that the suit is required to be filed within

three years. However, the prayer of the cancellation of the

sale deed is made in the suit though the period of limitation

is three years from the date of knowledge about the sale

deed and revenue entries.

10. In the judgment of Becharbhai Zaverbhai Patel

(supra), it is held that when there is a challenge to the registered sale deed and the revenue entry is also certified,

then such documents should be considered as public

documents and date of knowledge should be considered from

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the date of registration of such deed.

11. The Hon'ble Apex Court in the case of Khatri

Hotels Private Limited and Another V/s Union of India and Another reported in (2011)9 SCC 126, also considered the aspect of the starting point of limitation.

12. In the facts and circumstances of the present case,

considering the prayers and averments made in the plaint,

the cause of action is narrated that the registered sale deed

is executed on 4.2.2007 which is the first date when the

cause of action accrues and therefore as per the judgment of

the Hon'ble Supreme Court that the cause of action must be

considered from the first date of cause of action accrues, the

learned trial court as well as the lower appellate court has

given cogent and convincing reasons by justifying exercise of

powers under Order 7 Rule 11(d) of the CPC for rejecting

the plaint filed in the RCS No.30 of 2015 by holding that

the suit is barred by period limitation.

13. So far as the judgment which is cited at the bar

by the learned advocate in support of his submission that

plaint should be considered as a whole, there cannot be any

doubt about such proposition of law, however said judgment

is not helpful in the facts and circumstances in the facts and

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circumstances of the present case of the present petitioner as

indicated in the earlier portion of the order, the cause of

action is arising at first point of time for the year 2007

thereafter first action in 2010 and suit is filed in the year

2015.

14. This Court is examining the judgments of both the

Courts below, where it is found that learned trial court has

given proper and just findings and learned lower appellate

court has also decided the appeal by reappreciating the

material available on record and had recorded proper finding.

This court can examine the second appeal under Section 100

by keeping in mind the substantial question of law involved

in the appeal. It is fruitful to refer the judgment reported in

2023 SCC Online SC 875 paragraphs 7, 14 and 15 which are

reproduced as under:

"7. The parameters of an appeal under Section 100, CPC passing muster are well established. The section itself dictates that such an appeal shall only be maintainable when the case involves a substantial question of law or that the appellate decree has been passed ex parte. the latter, obviously is not the case. This court has, in a multitude of decisions, expounded on what may be termed as a substantial question of law to satisfy the requirements of section 100. In Nazir Mohamed v. J. Kamala (2- Judge

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Bench), it was observed:--

"27. In HeroVinoth v. Seshammal [HeroVinoth v. Seshammal, (2006) 5 SCC 545], this Court referred to and relied upon Chunilal V. Mehta and Sons Ltd. [Chunilal V. Mehta & Sons Ltd. v. Century Spg. & Mfg. Co. Ltd., AIR 1962 SC 1314] and other judgments and summarised the tests to find out whether a given set of questions of law were mere questions of law or substantial questions of law. The relevant paragraphs of the judgment of this Court in Hero Vinoth [Hero Vinoth v. Seshammal, (2006) 5 SCC 545] are set out hereinbelow : (SCC p. 554, para 21)

"21. The phrase "substantial question of law", as occurring in the amended Section 100 CPC is not defined in the Code. The word substantial, as qualifying "question of law", means-- of having substance, essential, real, of sound worth, important or considerable. It is to be understood as something in contradistinction with--technical, of no substance or consequence, or academic merely. However, it is clear that the legislature has chosen not to qualify the scope of "substantial question of law" by suffixing the words "of general importance" as has been done in many other provisions such as Section 109 of the Code or Article 133(1)

(a) of the Constitution. The substantial question of law on which a second appeal shall be heard need not necessarily

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be a substantial question of law of general importance. In Guran Ditta v. Ram Ditta [Guran Ditta v. Ram Ditta, 1928 SCC OnLine PC 31 : (1927-28) 55 IA 235 : AIR 1928 PC 172] the phrase "substantial question of law" as it was employed in the last clause of the then existing Section 100 CPC (since omitted by the Amendment Act, 1973) came up for consideration and their Lordships held that it did not mean a substantial question of general importance but a substantial question of law which was involved in the case.

In Chunilal case [Chunilal V. Mehta & Sons Ltd. v. Century Spg. & Mfg. Co. Ltd., AIR 1962 SC 1314] the Constitution Bench expressed agreement with the following view taken by a Full Bench of the Madras High Court in Rimmalapudi Subba Rao v. Noony Veeraju [Rimmalapudi Subba Rao v. Noony Veeraju, 1951 SCC OnLine Mad 100 : AIR 1951 Mad 969] : (Chunilal case [Chunilal V. Mehta & Sons Ltd. v. Century Spg. & Mfg. Co. Ltd., AIR 1962 SC 1314], AIR p. 1318, para 5)

'5. ... when a question of law is fairly arguable, where there is room for difference of opinion on it or where the Court thought it necessary to deal with that question at some length and discuss alternative views, then the question would be a substantial question of law. On the other hand if the question was practically covered by the decision of the highest court or if the general principles to be applied in determining the question are well settled and the only

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question was of applying those principles to the particular facts of the case it would not be a substantial question of law.'

28. To be "substantial", a question of law must be debatable, not previously settled by the law of the land or any binding precedent, and must have a material bearing on the decision of the case and/or the rights of the parties before it, if answered either way." (Emphasis supplied)

14. As already noted above, another ground of objection taken by the Appellant is the fact of the impugned judgment entering into a reappreciation of evidence. While it is true that ordinarily, in second appeal, the court must not disturb facts established by the lower court or the first appellate court. However, it is also equally well recognised that this rule is not an absolute one or in other words, it is not a rule set in stone. In Nazir Mohamed (supra) this Court has recognised three conditions in which a court in such jurisdiction, may disturb findings of fact. They are:--

"(i) the courts below have ignored material evidence or acted on no evidence; (ii) the courts have drawn wrong inferences from proved facts by applying the law erroneously; or (iii) the courts have wrongly cast the burden of proof. A decision based on no evidence, does not refer only to cases where there is a total dearth of evidence, but also refers to case,

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where the evidence, taken as a whole, is not reasonably capable of supporting the finding."

15. A Bench of three learned Judges, recently in Balasubramanian v. M. Arockiasamy (Dead) Through LRs. , had referred to, with approval judgment rendered in Ramathal v. Maruthathal (two-Judge Bench) wherein it was observed that the restraint in interfering with questions of fact under the jurisdiction of second appeal, is not an absolute rule. Where the court is of the view that the conclusions drawn by the court below do not have a basis in the evidence led or it is of the view that the appreciation of evidence "suffers from material irregularity"