Gujarat High Court
Jagdishbhai Odhabhai vs Dhirubhai Savsibhai Vagad on 11 February, 2025
NEUTRAL CITATION
C/CRA/511/2024 ORDER DATED: 11/02/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CIVIL REVISION APPLICATION NO. 511 of 2024
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JAGDISHBHAI ODHABHAI
Versus
DHIRUBHAI SAVSIBHAI VAGAD & ORS.
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Appearance:
MR VISHAL C MEHTA(6152) for the Applicant(s) No. 1
DECEASED LITIGANT for the Opponent(s) No. 3,3.3
MR PRAKASH G PANDYA(3041) for the Opponent(s) No. 1,2
NOTICE SERVED for the Opponent(s) No.
3.1,3.2,3.3.1,3.3.2,3.3.3,3.3.4,3.4,3.5,3.6,3.7
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CORAM:HONOURABLE MR.JUSTICE SANJEEV J.THAKER
Date : 11/02/2025
ORAL ORDER
1. With the consent of learned advocates for the parties,
the matter is taken up for final disposal.
2. Rule returnable forthwith. Learned advocate Mr.
Prakash G. Pandya waives service of notice of rule on behalf
of the respondent.
3. Aggrieved by the order passed below Exhibit-9 on
05.10.2024 in Regular Civil Appeal No.13 of 2022 whereby
the application filed by the applicant under the provision of
Order VII Rule 11 of the Code of Civil Procedure is rejected.
The defendant has filed the present Revision Application.
The parties are referred to plaintiff and defendant herein.
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4. The brief facts rising out of the present Revision
Application are as under:-
4.1 The plaintiffs are legal heirs of Savsibhai Vegad
and defendants are legal heirs of Odhabhai Chikabhai.
Savsibhai and Odhabhai Chikabhai were brothers.
4.2 The plaintiffs filed Civil Suit No.13 of 2022 that
the father of the plaintiffs Savsibhai Vegad was the owner of
the property and thereafter by Entry No.753 dated
14.07.1997 in the Revenue Record the name of father of the
defendant Odhabhai Chikabhai was entered in the Revenue
Record.
4.3 It is alleged in the plaint that the father of the
defendants without taking into confidence the father of the
plaintiff i.e. Savsibhai his brother Odhabhai Chikabhai
without any legal document and without producing any
documentary proof got his name mutated in the revenue
record by Entry No.753 and by way of the said Entry, half
portion of the suit property was mentioned in the revenue
record as the ownership of the father of the defendants i.e.
Odhabhai Chikabhai.
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4.4 It is the case of the plaintiffs that a fraud has
been committed and after the death of Odhabhai Chikabhai,
the name of the legal heirs of Odhabhai Chikabhai has been
entered in the revenue record. After the death of Savsibhai
Vegad and wife of the Savsibhai Vegad (predecessor of the
defendants), name of the legal heirs of Savsibhai Vegad who
have been entered in the revenue record because of the
wrong and concocted Entry No.753, it is the case of the
plaintiff that the name of legal heirs of Savsibhai Vegad
could not have entered and fraud has been committed by
Odhabhai Chikabhai with his brother Savsibhai Vegad. It has
been stated in the plaint that the plaintiffs had challenged
the said Entry by way of revenue proceedings.
4.5 The plaintiff in the plaint has alleged that it is
only on 15.03.2022 that the plaintiff came to know that the
revenue authority is not the authority to decide on the claim
of right of ownership in the suit property, and therefore, has
filed the present suit, and therefore, the plaintiff has filed
the suit for a declaration that being the legal heir of
Savsibhai, the plaintiffs are the owners of the suit property
and for an injunction restraining the defendant from
transferring, assigning and creating third party right in the
property.
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4.6 After service of notice, the present defendants
appeared in Regular Civil Suit No.13 of 2022 and defendant
No.8 filed an application under Order VII Rule 11, vide
Exhibit-9. It is the case of the defendant that the suit is
hopelessly time barred as the plaintiff has filed the suit after
more than 45 years after the revenue entries. It has also
been alleged that during the life time of Savsibhai Vegad i.e.
predecessor of present plaintiff late Savsibhai Vegad has
never claimed any exclusive right in the suit property nor
has been challenged for the said revenue entry entered into
with respect to the suit property.
4.7 By an order dated 05.10.2024, the Principal Civil
Judge, Dholera rejected the application on the ground that
the application vide Exhibit-9, under the provision of Order
VII Rule 11(A)(D) can only be decided after framing issues
and leading evidence. Hence, this Civil Revision Application.
5. Learned advocate for the defendant has drawn attention
of this Court to the order that has been passed below
Exhibit-9, and it is argued that the trial Court has not dealt
with the application on factual aspect and has only dealt
with application that though the application is under Order
VII Rule 11 (A)(D), the same cannot be allowed without
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leading evidence and giving an opportunity to both the
parties to lead oral and documentary evidence. The trial
Court has also not dealt with as to how the said application
Exhibit-9 is not required to be entertained on the factual
aspect and as to how from the reading of the plaint and
documentary evidence, the plaint could not be rejected.
6. Learned advocate for the defendant has brought to the
notice of the Court the revenue entry No.753 which is
produced vide Exhibit-3/2 in Regular Civil Suit No.13 of
2022. The said entry is of 18.02.1975 and by way of
revenue entry No.753, dated 18.05.1975 after taking reply of
the concerned parties, name of Odhabhai Chikabhai was
entered in the revenue record. It has been also mentioned in
the said revenue entry that the said property came in the
hands of Odhabhai Chikabhai (predecessor of defendant) and
the possession of the said property was also with Odhabhai
Chikabhai and it has also been noted that the said entry
no.753 is confirmed after due notice being served under the
provision of 135(d) of the Bombay Tenancy Act. Thereafter,
during the life time of Savsibhai Vegad by a family
arrangement, two brothers i.e. Odhabhai Chikabhai and
Savsibhai Vegad, partitioned their property and the said fact
can clearly be ascertained in revenue record by entry
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No.1410 and the said revenue entry has been confirmed after
due notice under Section 135(d) of Bombay Tenancy Act,
and Savsibhai Vegad and Odhabhai Chikabhai during their
life time partition their shoe in the property and the
property mentioned at survey No.324/1/3, more particularly,
341 paiki came in the share of Odhabhai Chikabhai and
survey No.71, 41 and 341 paiki 8.16 came in the share of
Savsibhai Vegad.
7. It has been argued by learned advocate for the
defendant that during the life time of Savsibhai Vegad, the
said revenue entry has never been challenged by him, and it
has been argued that by way of revenue Entry No.753, the
name of the predecessor of defendant was added in respect
of the suit property, and thereafter by revenue entry
No.1410 by way of a family arrangement in the year 1988,
there is the partition between the two brothers Savsibhai
Vegad and Odhabhai Chikabhai with respect to the suit and
the two brothers have partitioned their property since the
year 1988, it has been argued that the predecessor of the
present defendants became the owner of the property and
the plaintiffs knew about the suit transaction when revenue
entry No.1410 was challenged in the year 2017 and at least
from the year 2017, the plaintiffs were aware of the
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partition and an entry No.753 and 1410 were in knowledge
of the plaintiff, and therefore, the plaintiff could not file the
present suit in the year 2022, and therefore, the plaint is
barred by law.
8. It has been argued that even in the plaint the plaintiff
has also stated that the cause of action to file the present
suit has arisen only on dated 01.07.2022, as the plaintiff
came to know that the revenue authority cannot adjudicate
on the right of the plaintiffs qua ownership of the property,
and therefore, the plaintiff has filed the present suit. The
defendant has stated that as per Article 58 of the Limitation
Act, the period to obtain the declaration with respect of the
suit property is three years and the revenue entry is of the
year 1975 whereby the name of late Odhabhai Chikabhai has
been entered into revenue records, and thereafter, by way of
family arrangement by entry No.1410 in the year 1988, the
partition has taken place wherein the predecessor of the
present defendant came in the share of predecessor of the
present defendant through the plaint is hopelessly time
barred.
9. The learned advocate for the defendant had relied on
the judgment in the case of Dahiben v. Arvindbhai Kalyanji
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Bhanusali reported in (2020) 7 SCC 366 and has argued that
the remedy under Order VII Rule 11 and independently a
special remedy of the Court is empower to summarily
dismiss the suit at threshold without appreciating the record
evidence.
10. Learned advocate for the defendant has also relied on
the judgment reported in 2024 0 AIJEL & SC 7446 and has
argued that upon a meaningful reading, the suit was
hopelessly barred by limitation, the plaint has to be rejected,
and therefore, the intention of order VII Rule 11(D) is only
for the Courts only to nip at its butt when the litigation ex
facie appears to be great abuse of process of law.
11. The defendant has relied on the judgment passed in
Special Leave Petition No.1496 of 2021 in the case of Eldco
Housing and Industry Limited v. Ashok Vidyarthi and others.
12. Per contra, the learned advocate for the plaintiffs has
argued that the issue of limitation is a mixed question of
law and fact that it has also been argued that in the year
2017 when the dispute was before the revenue authority, the
plaintiff knew only about the revenue entry No.1410 dated
10.02.1998 and the plaintiffs are not aware of revenue entry
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No.753, and therefore, the said suit was filed in the year
2022. It has also been argued that while deciding the
application under Order VII Rule 11, the Court can only look
at the plaint and documents produced to the plaint and from
the bare reading of the plaint, the same cannot be said to
be barred by law, and therefore, the present Revision
Application is required to be rejected.
13. Learned advocate for the plaintiff has also relied on the
judgment passed in the case of Daliben v. Koda Kochar
arising out of SLP No.2365 of 2024 and the learned advocate
for the plaintiff to summarize argued that the plaintiff was
not aware of entry No.753 and was only aware entry
No.1410. The Civil Suit claiming ownership of the suit
property has been filed in the year 2022. Moreover, it has
been argued that no dispute over here is not with respect to
ancestral property, but the dispute is with respect to rights
which has been acquired by the predecessor of the plaintiff
in the year 1970, and therefore, also by way of family
arrangement, late Savsibhai Vegad could not have entered
the name of Odhabhai Chikabhai as owner of the property
and as the predecessor of the present defendant did not
possess any right in the property, they could not be said to
be owner of the property.
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14. Having heard learned advocates for the parties and on
perusing the plaint and documentary evidence and the order
that has been passed by the trial Court below Exhibit-9,
admitted facts are as under:-
(A) By a revenue entry No.753 on 18.05.1975, the name of
the predecessor of the present defendant, entered in the
revenue record.
(B) By revenue entry No.1410 on 10.02.1998 by way of
family arrangement, the predecessor of the plaintiff and
predecessor of the present defendant partitioned their
property.
(C) In the year 2017, there is a dispute with respect to
revenue entry No.1410 and after hearing the parties of the
suit proceeding in which the present plaintiffs were also
parties, necessary orders were also passed.
(D) The plaintiffs in the plaint at para-7 has mentioned
that on 15.03.2022, the plaintiffs came to know that the
revenue authority did not have powers to adjudicate of the
ownership of the suit property.
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15. Therefore, it is very clear that by way of revenue entry
No.753 in the year 1975, the predecessor of the present
plaintiff has entered the name of the predecessor of the
present defendant in the revenue record. The said revenue
entries were entered by late Savjibhai in favour of the
brother Odhabhai Chikabhai by way of family arrangement,
and thereafter in the year 1998 by revenue entry No.1410
there is a family arrangement by which both the brothers
partitioned their property and the said entry was mutated in
the revenue record after issuing notice as per law. The
predecessor of the present plaintiff during his life time has
never challenged the said revenue entry and it is only in the
year 2017, when there is the dispute with respect to the
description of the application was given under the revenue
jurisdiction with respect to entry No.1410 and in the year
2017, the revenue entry No.1410 was under challenge and
with respect to description of the property mentioned in the
said revenue entry No.1410, and therefore, it can be said
that at least in the year 2017, the plaintiff knew about
revenue entry No.753. The fact remains that if in the year
2017, the plaintiffs had the knowledge of revenue entry
No.1410, the plaintiff cannot say that he did not have any
knowledge of revenue entry No.753, as by way of revenue
entry No.1410, the property by way of family arrangement
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was partitioned and each brother got his share by way of
said family arrangement/partition. It does lie in the hands of
the plaintiffs to say that the plaintiffs were not aware of
revenue entry No.753. Even from the plain reading of the
plaint, the plaintiff is not stating that the plaintiff was not
aware of revenue entry No.753 and the plaintiff's case is
only that as he had no knowledge of law that revenue
authority cannot decide his right of ownership and the said
fact came in knowledge on 15.03.2022.
16. It is also not the case that the late Savjibhai i.e. the
predecessor of the plaintiff, plaintiff did not sign the
application before the revenue authority pertaining to entry
No.753 & 1410, nor it is proved that the signatures of late
Savsibhai Vegad for the said revenue entry were forged and
fabricated.
17. It is also to be noted that during the life time of late
Savsibhai Vegad, he has never challenged entry No.753 and
1410. Bare reading of the plaint clearly shows that even the
plaintiff has not stated that the father of the predecessor of
the present plaintiffs were not aware of entry No.753 and
entry No.1410. The paragraph No.8 wherein the cause of
action has been mentioned also suggests that it is not the
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case of the plaintiff that either the plaintiff or the
predecessor were not aware of mutation entry No.753 and
mutation entry No.1410, and it cannot be a ground that the
plaintiff came to know on 15.03.2022 that the revenue
authority did not have powers to decide the ownership of
the property, ignorance of law is not a ground to extend the
period of limitation and to file a belated suit. Therefore,
when the relevant facts are missing it cannot be said only at
the time of trial, the issues are required to be proved by
leading evidence the observations made by the trial Court
while deciding the Exhibit-9 are erroneous. The learned
Judge has not taken into consideration that the plaintiff
knew about the mutation entry since long and/or the
predecessor of the plaintiff have not challenged the mutation
entry during their life time. The fact that at para-8, the only
statement is made in the plaint that as the plaintiff was not
aware of law that the revenue authority could not decide the
ownership, the suit is filed in the year 2022.
18. The trial Court, while dealing with the application filed
under Order VII Rule 11 has not discuss the factual aspect
mentioned in the plaint and has also not discussed about
how the plaintiff can claim right of ownership of the
property after the father has by way of family arrangement
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in the year 1975, entered the name of predecessor of the
present defendant in the revenue record in the year 1975.
Moreover, there is a family arrangement and whereby the
suit property is partitioned.
19. Moreover, mentioning of the cause to file the suit
nothing but an eye wash by the plaintiff and the plaintiff
has created an illusion of cause of action the aversion and
allegation made in the plaint with respect to the knowledge
of entry No.753 and 1410 are too vague and moreover mere
stating in the plaint that the fraud has been played was not
enough and as per provisions of Order VI Rule 4 of the
Code of Civil Procedure, the allegation of fraud must be
specifically averred in the plaint and merely using the word
that by fraud the name of predecessor of the present
defendant was entered by way of revenue entry No.753
would not permit the plaintiff to get the suit within
limitation which otherwise would be barred by limitation.
Moreover, in T. Arivandandam v T.V. Satyapal and anothers
reported in (1977) 4 SCC 467 while considering the
application under Order VII Rule 11, what is required to be
decided is whether the plaintiff disclose the real case, action,
something poor illusionary, the Apex Court has stated as
under in para-5:-
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"5 ...The learned Munsif must remember that if on a
meaningful - not formal - reading of the plaint it is
manifestly vexatious and meritless, in the sense of
not disclosing a clear right to sue, he should exercise
his power under Order VII, Rule 11 C.P. taking care
to see that the ground mentioned there in a fulfilled.
And, if clever drafting has created the illusion of a
cause of action, nip it in the bud at the first
hearing."
20. In view of the above, at least, the said statement made
by the predecessor of the plaintiff and defendant before the
revenue authority relinquishing rights in respect of suit
premises is admitted by the plaintiff, and therefore, the
plaintiff is estopped from contending the contrary to the
statement made by the predecessor of the plaintiff and
defendant before the revenue authority. The fact also
remains that the properties were distributed amongst family
members i.e. two brothers by way of family arrangement
and the same is bona fidely made and the said statements
by the predecessor of plaintiff and defendant were made
before the revenue authority voluntarily by predecessor of
the plaintiff and defendant and the entry in the record of
rights regarding the factum of relinquishment of the rights of
the parties is a relevant piece of document to prove the
factum of relinquishment.
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21. Moreover, the statement of relinquishment/partition
with respect to the properties was evidenced by entries in
the record of rights which was maintained in official course
of business. The correctness thereof is not questioned and
the same corroborates the oral evidence given by the parties
in the suit, and therefore, the same is required to be
accepted.
22. Moreover, the predecessor of the plaintiff and
defendant having gone before the revenue authorities and
made a statement, and thereafter, after notice under Section
135(D) of the Bombay Tenancy Act having been served
having not objected by the predecessor to the said statement
whereby, by way of family arrangement, there was division
between the predecessor of plaintiff and late Odhabhai
Chikabhai, who were real brothers and the said statement
was made to sink with itself disputes and were for the
purpose of settling and resoling with the claimants of the
properties, once and for all in order to buy a peace of mind.
23. Therefore, as the application is made by predecessor of
the plaintiff before the revenue department and the same on
proper verification has been made before the revenue
department, the Court may presume existence of the said
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fact as the predecessor of plaintiff has gone before the
revenue department and made a statement whereby the
predecessor of plaintiff has relinquished/released his right
with respect of property.
24. The predecessor of plaintiff is a party to the said
statement made before the revenue department and is now
trying to seek to unsettle the settled dispute and claims to
revoke the said statement. The said statement which has
been made by the predecessor of the plaintiff before the
revenue department seems to have been made bonafide to
resolve the family dispute. The said settlement was made
voluntarily. The voluntarily statement made by the
predecessor of the plaintiff before the revenue department
after the family arrangement, is mere statement made by the
parties before the revenue department after the family
arrangement, for the purpose of making mutation entry and
the same does not fall within the mischief of Registration
Act and is therefore not compulsorily registrable and the said
statement is nothing but a memorandum of family settlement
whereby predecessor of plaintiff and late Odhabhai Chikabhai
bonafide resolved their family dispute and rival claims by a
fair equitable division of allotment of properties.
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25. Moreover, in the present case, the predecessor of the
plaintiff did not take any steps and the plaintiff claiming to
be the legal heir. Couching the prayer in such a manner so
as the remaining case is within limitation and than claiming
that the limitation is a mixed question of law and requires
trial. In the present case, at least in year 2017, when the
relevant dispute pertaining to entry No.1410 was going on
the plaintiff knew about entry No.1410, and therefore, it
cannot be said that the suit that has been filed in the year
2022 could be said to be a suit within the period of
limitation. Moreover, the plaintiff also claims that just
because he was under impression that the revenue authority
was going to decide the ownership of the property and the
said fact that the revenue authority could not decide the
ownership came knowledge of the plaintiff on 15.03.2022 the
said plaint cannot be said to within a period of limitation.
26. It is submitted that with request to the suit property by
way of Entry No.753 on 18.05.1975, the name of Odhabhai
Chikabhai was entered in the revenue record and by way of
revenue entry No.1410 on 10.02.1998, the brother Savsibhai
Vegad and Odhabhai Chikabhai by way of family
arrangement have divided their properties and during the life
time of Savsibhai Vegad and Odhabhai Chikabhai, the said
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mutation entries have not been challenged.
27. The trial Court could not have come to the conclusion
that from the facts stated in the plaint, the issue of
limitation can be only be decided after framing issues and
after leaving evidence as from the plain reading of the
plaint, however, plaintiff has not denied that he was not
aware of revenue entry No.753 and mutation entry No.1410
and moreover when the said revenue entry No.1410 was
under dispute before the revenue authority in the year 2017,
the Trial Court could not have stated that the said issue of
limitation can only be decided after leading evidence when
the plaintiff himself states that the plaintiff knew about the
dispute i.e. going on before the revenue department.
Moreover, the trial Court also could not have stated that the
suit could not have been rejected as the plaintiff himself has
stated that as he was ignorant of law that the revenue
authority can not decide the ownership of the right in the
property and that the said fact came in the knowledge of
plaintiff in the year 2022. The suit was maintainable.
28. In view of the said fact, the order of the trial Court
rejecting the application under Order VII Rule 11 is required
to be quashed and set aside. The impugned order dated
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05.10.2024 passed in Regular Civil Suit No.13 of 2022 below
Application Exhibit-9 by the Principal Civil Judge, Dholera is
not sustainable and the same deserves to be quashed and set
aside and is hereby quashed and set aside. Civil Revision
Application is allowed and the plaint aforementioned fails
and stands rejected. Rule is made absolute. No order as to
costs.
29. In view of the said fact, interim relief stands vacated.
(SANJEEV J.THAKER,J)
Manoj Kumar Rai
