Gujarat High Court
Hasanbhai Yusufbhai Patel vs Ajambhai Jorabhai Parmar-Decd. ... on 8 September, 2025
NEUTRAL CITATION
C/CRA/461/2015 ORDER DATED: 08/09/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CIVIL REVISION APPLICATION NO. 461 of 2015
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HASANBHAI YUSUFBHAI PATEL
Versus
AJAMBHAI JORABHAI PARMAR-DECD. THROUGH JULEKHABEN AJAMBHAI PARMAR & ORS.
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Appearance:
MR SP MAJMUDAR(3456) for the Applicant(s) No. 1
RULE SERVED for the Opponent(s) No. 1,2,3,4,5
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CORAM:HONOURABLE MR.JUSTICE SANJEEV J.THAKER
Date : 08/09/2025
ORAL ORDER
1. The present Revision Application has been filed
challenging the order dated 14.09.2015, passed by Principal
Civil Judge, Karjan, below Exhibit-19, in Special Civil Suit
No.68 of 2013, whereby, the application filed under the
provision of Order VII Rule 11 of the Code of Civil Procedure
has been rejected.
2. For the sake of brevity the parties are referred to as per
their original status as that in the suit.
3. The brief facts arising in the present Revision Application
are that the plaintiff filed Civil Suit No.68 of 2013, on the
ground that by way of registered sale deed, the suit property has
been sold by the plaintiffs to the defendant on 03.04.2006 and at
the time of execution of the said sale deed, the plaintiffs have
been given total amount of Rs.25,000/- though the amount was
mentioned in the said sale deed of Rs.75,000/-, the plaintiffs
were assured that, though the amount of Rs.25,000/- was
mentioned in the sale deed they may receive an amount of
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Rs.25,000/-, rest of Rs.50,000/- will be paid to the plaintiff
within a period of one month, and therefore, relying on the said
submissions and assurance and promise, the plaintiff executed
sale deed. It is the case of the plaintiff in the plaint that as the
said amount was not paid by the defendant, the plaintiff issued
notice from their advocate on 28.01.2013, for recovery of
remaining amount of Rs.50,000/- and the same was replied by
the defendant by their reply dated 04.09.2013, and therefore, as
the defendant did not repay the said amount of Rs.50,000/-, the
plaintiff filed Civil Suit for the following reliefs:-
(A) The Hon'ble Court be pleased to hold that the property, assessed
at Rs. 8.50, having area of 0-70-86, at Block/ Survey No. 246, Old Survey
No. 183 at Mauje Kherda, Taluka Karjan, District Vadodara is the
ancestral property of we the Plaintiff and our legal rights, interest and
entitlement subsist thereon.
(B) The Hon'ble Court be pleased to hold to the effect that the
registered sale deed at Sr. No. 411 dated 03/04/20(illegible), for the
property, assessed at Rs. 8.50, having area of 0-70-86, at Block/ Survey
No. 246, Old Survey No. 183 at Mauje Kherda, Taluka Karjan, District
Vadodara, as was executed by the Opponents by committing a breach of
trust with we the Plaintiffs, is wrong, lacking in entitlement, arbitrary and
illegal and therefore, the same is not binding on we the Plaintiffs and
therefore, it is illegal and void.
(C) The Hon'ble Court be pleased to declare that the Opponents do not
have any joint or several rights, entitlement, interest in the property,
assessed at Rs. 8.50, having area of 0-70-86, at Block/ Survey No. 246,
Old Survey No. 183 at Mauje Kherda, Taluka Karjan, District Vadodara
and therefore, they shall not execute any agreements, contracts, deeds
etc. causing any damage to the rights and interest of we the Plaintiffs or
creating rights, interest of any third party.
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(D) The Hon'ble Court be pleased to grant a permanent injunction
against the Opponents and in favor of we the Plaintiffs to the effect that
the Opponents do not have any joint or several rights, entitlement,
interest in the property, assessed at Rs. 8.50, having area of 0-70-86, at
Block/ Survey No. 246, Old Survey No. 183 at Mauje Kherda, Taluka
Karjan, District Vadodara and therefore, they shall not create any
hindrance, obstruction or encumbrance, directly or indirectly, to cause
any damage to the rights of we the Plaintiffs.
(E) The Hon'ble Court be pleased to grant us the cost of the present
suit from the Opponent.
(F) The Hon'ble Court be pleased to grant any other relief
deemed fit in the interest of justice.
4. And to declare that:-
(a) The plaintiff is owner of the suit property and to declare
that the suit property is ancestral property and that the plaintiff
has right, title, interest in the suit property.
(b) To cancel the registered sale deed executed on 03.04.2006
which is registered before the Sub Registrar at Registration
No.411 to be declared illegal and cancelled and not binding on
the plaintiffs and to declare that the defendant does not have any
right to create third party right in the suit property and to
execute any document with respect to the suit property and
ancillary injunction relief with respect to suit property.
5. The defendant appeared in the said suit and filed
application, vide Exhibit-19 on the ground that the sale deed that
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has been executed on 03.04.2006 and the suit that has been filed
by the plaintiff is in the year 2013, and therefore, the suit is
hopelessely time barred and that after taking into consideration
the plaint and documents annexed with the plaint, the trial Court
held that considering the reliefs sought in the plaint unless oral
evidence is taken, the suit could not be rejected under Order VII
Rule 11 of the Code of Civil Procedure. In view of the same, the
said application was rejected.
6. Learned advocate for the defendant has mainly argued that
the suit that has been filed is for challenging the registered sale
deed after a period of arround 7 years, and therefore, the same is
clearly barred by law of limitation. The fact also remains that
the sale deed that has been executed by the plaintiffs themselves
in favour of the defendant and only grievance that the plaintiffs
have raised in the plaint is that though an amount of Rs.75,000/-
was to be paid for sale consideration, the defendant has paid
only Rs.25,000/- to the plaintiff, and therefore, the plaintiffs
have claimed to be unpaid seller for which suit is preferred
seeking cancellation of registered sale deed, and therefore, in
view of the judgment reported in 2025 (0) AIJEL-HC 250882 in
the case of Kshama Infrabuild Pvt. Ltd. v. Govindbhai
Laxmanbhai Makwana, and therefore, it has been argued that
the plaintiff could not have filed suit challenging the said sale
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deed of the year 2006 in the year 2013 and the relief that have
been sought by the plainttiffs in the plaint are hopelessely barred
by law, and therefore, the plaint was required to be rejected by
the trial Court.
7. Learned advocate for the defendant has argued that if the
pleadings of the plaintiffs are taken into consideration the entire
suit revolves around the fact that the plaintiff has admitted of
executing the sale deed on 03.04.006 and the only grievance that
the plaintiff has raised is to the fact that the sale consideration to
the tune of Rs.50,000/- is not paid to the plaintiff. The reliefs
that the plaintiffs have sought for a declaration that to declare
that the plaintiffs are the owner of the property also cannot be
taken by the plaintiff in view of the fact that plaintiffs
themselves have signatory to the sale deed dated 03.04.2006,
and therefore, the trial Court could not have rejected the
application filed under the provision of Order VII Rule 11 of the
Code of Civil Procedure, and therefore, the order that has been
passed by the trial Court rejecting the application is required to
be stayed and plaint is required to be rejected under the
provisions of Order VII Rule 11 of the Code of Civil Procedure
is required to be allowed.
8. Having heard learned advocate for the defendant. The
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following are the undisputed facts:-
(a) Plaintiffs do not deny the execution of registered sale deed
dated 03.04.2006.
(b) In fact, only case of the plaintiffs in the plaint is that the
plaintiffs are unpaid seller and has not received the sale
consideration.
9. A bare reading of the registered sale deed dated
03.04.2006 clearly states that:
(i) Plaintiff admits that he has executed sale deed in favour of
the defendant.
(ii) Plaintiff has voluntarily executed sale deed in favour of the
defendant by accepting entire sale consideration.
(iii) The said sale deed does not state that further amount of
Rs.50,000/- was to be paid by the defendant to the plaintiff with
respect to the said sale deed dated 03.04.2006.
(iv) The said sale deed does not state that the said sale deed is
subject to recovery of Rs.50,000/- by the plaintiff from the
defendant.
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10. Therefore, if the entire plaint is taken into consideration,
the plaintiff has admitted execution of the registered sale deed
dated 03.04.2006. The said sale deed also states that possession
has been handed over to the defendant. It is not the case of the
plaintiff that the plaintiff had not executed the sale deed and
only the case of the plaintiff is that they have not received an
amount of Rs.50,000/- which was agreed to be paid to the
plaintiff by the defendant at the time of execution of registered
sale deed dated 03.04.2006.
11. Therefore, it can be clearly seen that there is no case of the
plaintiff that fraud has been committed on the plaintiff at the
time of execution of the sale deed, except for stating that an
amount of Rs.50,000/- was promised by the defendant, while
executing the said sale deed and the same is not paid to the
plaintiffs.
12. The fact remains that even if the entire sale consideration
has not been paid by the defendant, it cannot be a ground for
cancellation of sale deed. The plaintiffs may have other
remedies in law for recovery of balance consideration but the
same cannot be a ground for the plaintiff for seeking of relief of
cancellation of registered sale deed, therefore, it is clear that the
plaintiff has filed the present suit with a sole case that the
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plaintiff has not been paid the sale consideration of Rs.50,000/-
for execution of sale deed dated 03.04.2006, and therefore,
except the relief of recovery of amount no other relief can be
claimed by the plaintiff for the said suit.
13. The perusal of the said sale deed dated 03.04.2006 would
show that the plaintiffs have in fact acknowledged in the said
sale deed that the sale consideration has been received by the
plaintiffs and once the plaintiff having said so the plaintiff
cannot now resile in the plaint to say or otherwise, without any
documentary evidence thereon, and therefore, the plaint that has
been filed by the plaintiffs is an illusionary cause of action with
respect to the suit being within the period of limitation. The said
sale deed under challenge is of 03.04.2006, it is not even the
case of the plaintiff that the plaintiffs were not aware of the
registration of the sale deed in fact such execution could not
have been pleaded by the plaintiff in view of the fact that the
plaintiffs themselves have admitted execution of the sale deed
and have not denied the same, and therefore, if the plaintiff
intended to challenge the registered sale deed, it could have been
done within three years from execution as provided under
Article 59 of Limitation Act, 1963.
14. On the plain reading of the plaint, it is clear that the
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plaintiff has come forward with a case upon non payment of sale
consideration and by stating that a notice was issued by the
plaintiff in the year 2013, the plaintiff has tried to prefer the suit
within the period of limitation. The suit that has been filed by
the plaintiffs after having themselves accepting in the said sale
deed the amount is after a period of 7 years, from the date of
execution of the said sale deed, and therefore, the suit that has
been filed is mere after-thought and after considering entire
plaint, it is clear that cause of action for the present suit even
according to the plaintiff, arose on the date sale deed is executed
and the said sale considertion was not paid to the plaintiffs and
the said event occurred in the year 2006, therefore, it cannot be
said that the present suit is within the period of limitation,
therefore, it is clear that the plaintiff has approached the trial
Court after gross delay and after a period of limitation. Hence,
the plaint, filed by the plaintiff is required to be rejected under
Order VII Rule 11(d) of the Code of Civil Procedure.
15. Consequently the present plaint is with cause of action and
is barred by limitation. Accordingly, the plaint is hereby
rejected. The present Civil Revision Application is accordingly
allowed. Rule is made absolute. No order as to costs.
(SANJEEV J.THAKER,J)
Manoj Kumar Rai
