Gujarat High Court

Legal Heirs Of Navalkant Govindlal ... vs Divyakant Govindlal on 26 September, 2024

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                             C/FA/2934/2024                                              JUDGMENT DATED: 26/09/2024

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                                     IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                                                  R/FIRST APPEAL NO. 2934 of 2024


                       FOR APPROVAL AND SIGNATURE:


                       HONOURABLE MR. JUSTICE SANDEEP N. BHATT

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                       1      Whether Reporters of Local Papers may be allowed
                              to see the judgment ?

                       2      To be referred to the Reporter or not ?

                       3      Whether their Lordships wish to see the fair copy
                              of the judgment ?

                       4      Whether this case involves a substantial question
                              of law as to the interpretation of the Constitution
                              of India or any order made thereunder ?

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                                  LEGAL HEIRS OF NAVALKANT GOVINDLAL PATEL & ANR.
                                                       Versus
                                            DIVYAKANT GOVINDLAL & ORS.
                       ==========================================================
                       Appearance:
                       MR JF MEHTA(461) for the Appellant(s) No. 1,1.1
                       MR MI MERCHANT(479) for the Defendant(s) No. 4,6,7,9
                       ==========================================================

                           CORAM:HONOURABLE MR. JUSTICE SANDEEP N. BHATT

                                                               Date : 26/09/2024

                                                           ORAL JUDGMENT

1. This appeal is filed by the appellant-original

plaintiff being aggrieved and dissatisfied with the order dated

6.3.2024 passed below Exhs.20 and 21 in Civil Suit No.143 of

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2021, whereby the application preferred by defendant no.6

under Order VII Rule 11(A)(C) read with Section 151 of the

Civil Procedure Code was allowed and the plaint of the

appellant-plaintiff is rejected.

2. The brief facts leading to filing of this appeal are

such that the appellant-plaintiff filed the Civil Suit No.143 of

2021 in City Civil Court at Ahmedabad against the

defendants for cancellation of sale deed executed by them in

favour of Hetal Park Tenement Association through their

power of attorney Sudhaben Govindbhai Patel for the

property situated at Survey No.561 Mouje Sim Isanpur,

Ta.Maninagar, Dist.Sub-district Ahmedabad admeasuring 8107

sq.yards.

3. The original defendant no.6 filed application under

Order VII Rule 11(A)(C)(D) read with Section 151 of the Civil

Procedure Code praying for rejection of the plaint on the

grounds stated in the application.

4. The learned Civil Civil Court allowed the said

application and rejected the plaint of the appellant-plaintiff

by way of the impugned order, which is the matter of

challenge before this Court.

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5. Heard learned advocates for the parties.

5.1 Learned advocate Mr.Mehta appearing for the

appellant-plaintiff submits that the defendant no.6 has filed

the application under Order VII Rule 11 mainly on the

ground that the suit is barred by limitation. The learned

trial Court proceeded to accept the same and dismissed the

plaint which is not just and proper. He submitted that the

plaintiff has clearly stated in the plaint that the plaintiff

took search of the revenue record recently after the lock

down and therefore she came to know about the alleged

transaction; that the learned trial Court has proceeded on

presumption that the plaintiff must be aware of all the

transactions relating to suit property and that it can be

legally inferred that the plaintiff must have deemed

knowledge of all the sale transactions; that as per the

provisions of the Transfer of Property Act, the time would

start to run from the date when plaintiff first comes to know

about alleged transaction. He submitted that when the

property was solely owned by the plaintiff's father, and when

her father has not sold the suit property during his life time

and she has also not sold the suit property to anyone, she

does not have any reason to believe that the property would

have been sold by her sister by a got up power of attorney

and she filed the suit, when she came to know about the

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same. He submitted that under all these circumstances, the

learned trial Court has committed error in accepting the

averments made in the application filed by the defendant

no.6 for rejection of the plaint and rejected the plaint, which

is not proper and therefore he prayed to allow this appeal

and restore the suit filed by the plaintiff-appellant, so that

the same can be decided on merits.

5.2 Per contra, learned advocate for the respondents submitted that the learned trial Court has not committed any

error in passing the impugned order. He submitted that the

captioned suit is barred by the provisions of Code of Civil

Procedure and Article 59 of the Limitation Act and therefore

no cause of action arose for filing the suit in the year 2020

as the alleged transaction which is sought to be cancelled is

of the year 1996 and there is nothing in the plaint to show

as to how the plaintiff came to know of the alleged

conspiracy of the defendants after 24 years; that the plaint

does not specify the documents from which the plaintiff

gathered knowledge about the said conspiracy; therefore,

considering all these aspects, the learned trial Court has

allowed the application of the defendant no.6 and rejected the

plaint, which is just and proper and no interference is

required by this Court. He, therefore, prayed to dismiss this

appeal.

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6. I have heard the learned advocates for the parties

and perused the material on record, including the impugned

order.

7. It transpires from the record that the said suit is

filed by the appellant-plaintiff on 29.12.2020 for cancellation

of registered sale deed dated 28.10.1996, on the ground that

the said land was sold through bogus power of attorney of

the plaintiff and that she was not in knowledge of the said

transaction. It also transpires that the defendants are the

immediate family members of the plaintiff and her father.

There is nothing contrary coming on the record to dispute

the said fact that the plaintiff and defendants are closely

related to each other. Therefore, the finding of the learned

trial Court that the plaintiff-appellant must be aware of all

the transactions relating to the suit land and it can be

legally inferred that the plaintiff must have deemed

knowledge of all the sale transactions.

8. The main point raised by the defendant before the

learned trial Court while seeking the prayer for rejection of

plaint is that the suit is barred by limitation. In this regard,

if the provisions of law are perused, the Limitation Act, 1963

prescribes a time-limit for the institution of all suits, appeals

and applications. Section 2(j) defines the expression "period of

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limitation" to mean the period of limitation prescribed in the

Schedule for suits, appeals or applications. Section 3

prescribes that every suit instituted after the prescribed

period, shall be dismissed even though limitation may not

have been set up as a defence. Articles 59, 110 and 58 of

the Limitation Act read 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

9. Considering the above provisions, if the facts of the

present case are perused, it is clear that the sale deed is of

the year 1996 and the suit is filed in the year 2020 i.e.

after a period of almost 24 years and there is no reason

coming forth in the plaint as to how the plaintiff-appellant

came to know about the same after so many years suddenly,

if at all, she was not in knowledge of the same althroughout

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and also there is nothing to show that exactly when the

plaintiff-appellant came to know about the same. Therefore,

the learned trial Court has come to the conclusion that the

suit is barred by limitation and therefore rejected the plaint.

10. The learned trial Court has referred to the judgments

of this Court in the case of Divyeshbhai Mahendrabhai Patel V/s Vijaybhai Odhabhai Lalu reported in 2023(0) AIJEL-HC 247438 on the point of limitation and in the case of Dahiben V/s Arvindbhai Kalyanji Bhanusali (Gajra) (D) Thr Lrs. Reported in 2020(0) AIJEL-SC 66338 on the point of Order VII Rule 11 of Civil Procedure Code.

11. A reference to the case of Becharbhai Zaverbhai Patel

V/s Jashbhai Shivabhai Patel, reported in 2013(1) GLR 398 , would be fruitful at this stage, 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

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."

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