Gujarat High Court
Bhavin Kiritkumar Parikh vs Nirav Ashwinkumar Parikh on 14 February, 2025
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C/CRA/503/2024 ORDER DATED: 14/02/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CIVIL REVISION APPLICATION NO. 503 of 2024
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BHAVIN KIRITKUMAR PARIKH & ORS.
Versus
NIRAV ASHWINKUMAR PARIKH & ORS.
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Appearance:
MR PRABHAKAR UPADYAY(1060) for the Applicant(s) No. 1,2,3,4
DELETED for the Opponent(s) No. 2
NATASHA SUTARIA(7907) for the Opponent(s) No. 1
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CORAM:HONOURABLE MR.JUSTICE SANJEEV J.THAKER
Date : 14/02/2025
ORAL ORDER
1. The present Civil Revision Application has been filed
challenging the order passed below Exhs.36 and 37 in Civil Suit
No.1098 of 2023 passed on 07.08.2024 by Additional City Civil
Judge, City Civil Court No.14, City Civil and Sessions Court,
Ahmedabad whereby applications below Exh.36 and 37 which were
filed under Order VII Rule 11 of the Code of Civil Procedure, 1908
have been dismissed.
2. With the consent of learned advocates for the parties, the
matter is taken up for final hearing.
3. The brief facts arising in the present application is as under:
3.1 Parties are referred to as per their original status before the
trial Court.
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3.2 The plaintiffs claiming to the legal heirs of one
Mr.Ashvinkumar Parikh have filed suit. The brief background of the
entire dispute is that it is plaintiffs' case that the plaintiffs are legal
heirs of Ashvinkumar Parikh and have undivided title of property of
176 sq yrd which is situated being Plot No.186/A/1 at
Mouje:Dariyapur-Kazipur, District: Sub-District Ahmedabad. It is the
case of the plaintiff that defendant no.1 is the son of Kiritkumar
Parikh and the plaintiff's father and defendant's father both were
sons of Late Chimanlal Mahipatram and Late Chimanbhai
Mahipatram had two wives and plaintiff's father was son of late
Chimanlal Mahipatram and Smt Ramagauri Chimanlal Mahipatram
and father of the defendant no.1 was son of Shri Chimanlal
Mahipatram and Radhagauri Chimanlal Mahipatram. The defendant
no.2 is mother of defendant no.1 and defendant no.3 is daughter of
late Kiritkumar Parikh. It is alleged in the plaint that defendant
no.4,- the third party is trying to develop and trespass on the suit
premises and defendant no.5 is wife of defendant no.1.
3.3 It has been alleged in the plaint that the entire property was
owned by Shri Mahipatram Dolatrai - grandfather of the plaintiff
and defendant no.1 and by Will late Shri Mahipatram Dolatrai had
allotted his properties to his son Chimanlal Mahipatram and
thereafter Chimanlal Mahipatram appointed four trustees through
trust-deed dated 15.03.1950 and in the said trust-deed there was a
condition, that when the father of the plaintiff and father of
defendant no.1 attain the age of 21 years, they will become owners
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of the property and in the alternative power was vested on the
trustees to execute release-deed that would grant father of plaintiff
and defendant the ownership of the property.
3.4 It is the case of the plaintiff in the plaint that in pursuance of
the judgment and decree passed by the City Civil Court and
Sessions Court in Regular Civil Suit No.15 of 1950 the release-deed
executed by trustees on 18.04.1968 in favour of the father of the
plaintiff and the father of the defendant no.1 and in pursuance of
the said release-deed, the property situated at plot No.186/A/2
admeasuring 3078 sq yrd at Mouje Dariyapur Kazipur, District -
Sub-district Ahmedabad was transferred to legal heirs of Chimanlal
Mahipatram and the father of the present plaintiff came the
exclusive owner of sub-plot no.186/2/2 admeasuring 1053 sq yrd
and 186/A/1 admeasuring 176 sq yrd situated at Mouje Dariyapur-
Kazipur, Dist-Sub-District Ahmedabad was to remain as of joint
ownership of father of the plaintiff and father of the defendant no.1
and that they have joint right, title and interest over the said
property and dispute in the present case is with respect to plot
admeasuring 176 yrd.
3.5 It is the case of the plaintiff in the plaint that when TP
scheme No.14 of Shahibaug was proposed, a triangular piece of
land situated at the northeast side of the plot having old survey
no.186/A/2 admeasuring 474 sq yd was offered by Ahmedabad
Municipal Corporation to owners of adjacent plots i.e. Sub Plot
No.186/A/1. It is also the case of the plaintiff in the plaint that
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after the death of his father viz. Ashvinkumar Parikh, right, title
and interest of the property i.e. 1503 sq yd of Sub Plot
No.186/A/2/2 as well as absolute undivided interest of 176 sq yd
over the property situated at Sub Plot No.186/A/1 has been vested
in the plaintiffs. However, in the month of April, 2023 when the
plaintiff saw an illegal board on the northern east boundary of
Survey No.7189, the plaintiff was constrained to issue legal notice
to defendant no.1 dated 14.04.2023 with respect to his right, title
and interest over the subject property situated at Block No.A of
Final Plot N.241 in TP Scheme No.14 admeasuring 1432.24 sq yd.
The said notice was replied by the defendants and it is only in the
month of April, 2023 that though the plaintiff has his rights over
the said property, the said property is being engaged by the
defendants, the plaintiff filed the present suit.
3.6 The defendants after having filed his appearance filed
application at Exhs.36 and 37 under the provisions of Order VII
Rule 11 (a) and (d) of the CPC on the ground that no cause of
action arise for the plaintiff to file present suit and on the fact that
present suit has been filed after 55 years of release-deed more
particularly after 18.04.1968 and, therefore, it the case of the
defendant that after executing release-deed, the plaintiff could not
have filed the present suit after the predecessor of the plaintiff have
released their right in the suit property, as the predecessor of the
defendant had become exclusive owners of the suit property after
execution of said release-deed dated 18.04.1968.
4. It is the case of the defendant that after execution of the
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release-deed, predecessor of the plaintiff and the predecessor of the
defendant became exclusive owner of the property and by way of
said release-deed, defendants had a right to use and occupy the
premises and also to develop the property and to sell the property
and, therefore, it is the case of the defendant that the suit that has
been filed by the plaintiff is hopelessly time barred and that suit
could not have been filed by the plaintiff.
5. Learned advocate for the defendant has argued that by virtue
of release deed dated 18.04.1968 whereby the property have been
equally divided between the predecessor of the plaintiff and
defendants and by way of release-deed defendant's predecessor have
become exclusive owner of the suit premises, the plaintiff could not
have filed the present suit as the predecessor of the plaintiff have
executed release deed with respect to right over the suit property.
It is also the case of the plaintiff that late Ashwinkumar Parikh
expired on 23.09.2001 and till his death said release deed has never
been challenged by late Ashwinkumar Parikh. It is also the case of
the defendant that though public notice was issued seeking title
clearance of the suit property, the said public notice was never
challenged by the plaintiff and therefore also the plaintiff could not
have filed the present suit. It has also been argued that the said
public notice has been issued on 29.09.2022 and, therefore, on the
plain reading of the plaint and documents produced along with the
suit is hopelessly time barred and, therefore, trial Court should
have rejected the plaint as the same is barred by law. Moreover,
the fact that the plaintiffs' predecessor having executed release deed
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on 18.04.1968 and parties having acted on the said release deed,
which is registered release deed, no cause of action arises for filing
the present suit.
6. Per contra, learned advocate for the plaintiff has mainly
argued that the dispute in the present case is not pertaining to the
challenge to the said release deed dated 18.04.1968 but the fact is
that plaintiff is claiming right by virtue of the said release deed
dated 18.04.1968 whereby property admeasuring 176 sq yd of
survey no.186/A/1 as mentioned at page:35 of the release deed
dated 18.04.1968 is jointly owned by the plaintiff as well as legal
heirs of late Kiritkumar Parikh i.e. defendant nos.1 to 3. Therefore,
main claim in the suit is not to challenge the release deed and / or
revive the entire claim which the predecessor of the plaintiff and
predecessor of the defendant had before execution of release deed
but the same only pertains to the property i.e. admeasuring 176 sq
yd of survey no.186/A/1 which is an open land which has to be
used for road and the release deed itself mentions that out of 176
sq yd, undivided 88 sq yd of the property is to be declared to be
ownership of father of plaintiff and late Ashwinkumar Parikh and,
therefore, from the plain reading of the plaint, it cannot be said
that the suit is barred by law.
7. Having heard learned advocates for the respective parties and
having gone through the plaint along with its annexures and the
order that has been passed below Exhs.36 and 37 whereby the
application under Order VII Rule 11 of the CPC have been rejected,
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it appears that important fact is that there is no controversy
between the parties that the suit property belonged to late
Chimanlal Mahipatram and thereafter release deed executed
whereby out of entire property, property admeasuring 1503 sq yd
has come in share of predecessor of the plaintiff and also if page:34
of the registered release deed is read, it also states that over and
above 1503 sq yd which comes in the share of predecessor of the
plaintiff, 176 sq yd, open land which is used as road in survey
no.186/A/1 will be undivided and, therefore, 88 sq yd of the said
property, plaintiff's predecessor was declared owner and as it is
specifically mentioned in the release deed that the said 176 sq yd
property will be of joint ownership of father of the plaintiff and
predecessor of the defendant, the present suit is filed with respect
to said undivided share of 176 sq yd and the suit is not filed for
entire property, reopening the rights which have been created by
way of said release deed dated 18.04.1968. From the plain reading
of the plaint, the plaintiff is trying to ascertain her right which
have been created by way of said registered release deed and the
fact that the said rights have never been disturbed by the plaintiff
till the year 2023 i.e. when the plaintiff saw the board on the suit
premises and, thereafter notice was issued with respect to said
property. Therefore, it cannot be said that the plaintiff's suit is
barred by Law of Limitation as the suit that has been filed by the
plaintiff is with respect to the release deed that has been executed
ono 18.04.1968 and the rights have been conferred by way of said
released deed which was in existence from the year 1968 till the
time the plaintiff saw illegal board i.e. April, 2023 and thereafter
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notice was issued. Therefore, till the said month of April, 2023
when the plaintiff saw illegal board in the suit premises there was
no threat of any encroachment to the plaintiff right for suit
property admeasuring 176 sq yd which is undivided and of joint
ownership of the predecessor of the plaintiff and predecessor of the
defendant and, therefore, plaint cannot be said to be barred on the
ground of having no cause of action and on the point of limitation.
8. While deciding application only plaint along with the
documents annexed with the plaint have to be read with and,
therefore, as plaintiff's case is based on his right with respect to
registered release deed executed in the year 1968, it cannot be said
that plaintiff's suit is barred on the point of no cause of action or
law of limitation. Hence, the present Civil Revision Application is
required to be dismissed and it is dismissed accordingly.
(SANJEEV J.THAKER,J)
MISHRA AMIT V.
