[Cites 12, Cited by 0]
Gujarat High Court
Javahar Ashanand Bhatiya vs Anurup Babulal Sheth on 9 March, 2026
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/FIRST APPEAL NO. 4159 of 2017
With
CIVIL APPLICATION (FOR VACATING INTERIM RELIEF) NO. 1 of 2025
In R/FIRST APPEAL NO. 4159 of 2017
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE DEVAN M. DESAI
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Approved for Reporting Yes No
✓
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JAVAHAR ASHANAND BHATIYA & ANR.
Versus
ANURUP BABULAL SHETH & ORS.
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Appearance:
MR Y J PATEL(3985) for the Appellant(s) No. 1,2
MR AS ASTHAVADI(3698) for the Defendant(s) No. 4
MR P P MAJMUDAR(5284) for the Defendant(s) No. 5,6
MR. NISHIT P GANDHI(6946) for the Defendant(s) No. 3
NOTICE NOT RECD BACK for the Defendant(s) No. 1
SERVED BY AFFIX(N) for the Defendant(s) No. 2
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CORAM:HONOURABLE MR. JUSTICE DEVAN M. DESAI
Date : 09/03/2026
JUDGMENT
1. The present First Appeal is filed under Section 96 of the
Code of Civil Procedure, 1908 (hereinafter referred to as 'the
Code') by the appellants-original plaintiffs challenging
judgment and decree dated 05.09.2017 passed in Special Civil
Suit No.47 of 2016 by the learned Additional Senior Civil
Judge, Kalol, Gandhinagar.
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2. Heard learned advocate Mr. H.S. Tolia assisted by learned
advocate Mr. Y.J. Patel for the appellants, learned advocate Mr.
A.S. Athavadi for respondent No.4 and learned advocate Mr.
Varun Bharda with learned advocate Mr. P.P. Majmudar for
respondent Nos.5 and 6.
3. The brief facts of the case are as under:-
3.1. It is the case of the plaintiffs that the land admeasuring 06-
72-79 H-Are-Sq.Mtr. situated within the limits of Moje Village
Khatrej, Taluka Kalol, District Gandhinagar (earlier Mehsana),
was originally owned and occupied by Kahalia and Amthabhai
Kahlia. The owners developed the land by preparing a layout
for industrial purposes and applied to the concerned Taluka
Panchayat for conversion of the land for non-agricultural use.
The Taluka Panchayat, by its order dated 10.09.1990 granted
non-agricultural permission for industrial use and approved the
layout plan. Thereafter, co-owners of a Plot No.6/B of Plot No.6
admeasuring 330 sq. yard of land was sold to Jayantibhai
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Prahladbhai Patel by a registered sale deed dated 28.12.1992
bearing Registration No. 2439 of 1992. Thereafter, said
Jayantibhai Prahladbhai Patel sold said Sub-Plot No.6/B (suit
property) to Defendant No. 1 by a registered sale deed dated
20.05.1994 bearing Registration No. 1148 of 1994.
Subsequently, plaintiffs purchased the said Sub-Plot No. 6/B
from Defendant No. 1 for a consideration of Rs. 14,000/- by a
registered sale deed dated 24.10.1997. From the date of the said
registered sale deed, plaintiffs became the absolute owners and
lawful occupants of the suit land and have continued to remain
in peaceful possession thereof.
3.2. Defendant No.1, without any authority in law, executed
registered sale deed in respect of the same suit land in favour of
Defendant No.2 on 30.06.1999.
3.3. Plaintiff issued a legal notice dated 23/26-12-2007 to
defendant No.4, as defendant No.4 being a Financial Institution
was in process of selling suit property. Defendant in reply
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stated that defendant No.2 had availed financial assistance from
defendant No.4 and has mortgaged suit property to defendant
No.4. Defendant No. 4 further claimed to have taken possession
of the suit land on 12.01.2001 under Section 29 of the State
Financial Corporations Act, 1951, and proposed to sell the land
by public auction. Defendant No.4 illegally transferred
ownership to defendant No.3 without delivery of actual
possession. Defendant No.3 on 15.06.2010 tried to forcibly
obtain possession of suit land from plaintiff.
3.4. Plaintiffs filed Regular Civil Suit No. 159 of 2010 before
the learned Principal Civil Judge, Kalol, seeking cancellation of
the alleged auction sale and permanent injunction. During the
pendency of the said suit, Defendant No. 3, without any lawful
authority, further executed registered sale deed dated
27.01.2014 in favour of Defendant Nos. 5 and 6. The said sale
deed was for the suit land over and above land admeasuring
176.42 sqare metres of Plot No.6B, totalling 452.42 square
metres. Plaintiffs realizing that above sale transaction was
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executed during the pendency of aforesaid suit, and if
amendment in plaint is sought for, such amendment would
suffer technical defects, plaintiffs on 22.03.2016, with a liberty
to file fresh suit, withdrew Regular Civil Suit No.159 of 2010.
Thereafter, plaintiffs filed the present suit with following
prayers.
"(10) Therefore, plaintiffs are seeking the following reliefs:
(a) That this Hon'ble Court be pleased to declare the sale
deeds pertaining to Plot No. 6/B, being non-agricultural land
admeasuring 330 sq. yards (effective area 276 sq. metres),
forming part of Survey/Block No. 95, situated at Village
Khatrej, Taluka Kalol, District Gandhinagar (formerly
Mehsana), registered before the Sub-Registrar, Kalol vide
Serial No. 994/1999 dated 30.06.1999 and Serial No.
558/2014 dated 27.01.2014, as well as the subsequent sale
deed registered on 04.12.2013 vide Serial No. 8183, whereby
the property was purportedly transferred to Defendant No. 3
as illegal, unlawful, null and void. It is further prayed that
this Hon'ble Court be pleased to declare that the defendants,
by virtue of the aforesaid transactions, have not acquired any
right, title, interest, ownership, possession, tenancy, or share
in the suit property.
(b) It is further prayed that this Hon'ble Court be pleased to
declare the possession of the defendants over the suit
property as illegal and unauthorized, and to direct the
defendants to hand over peaceful, vacant and direct
possession of the suit property to the plaintiffs. In the event of
failure to comply with such direction, this Hon'ble Court may
be pleased to appoint a Court Commissioner and restore
possession of the suit property to the plaintiffs through due
process of law.
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(c) It is further prayed that this Hon'ble Court be pleased to
grant a permanent injunction, restraining the defendants,
their agents, servants, heirs, successors and assigns from
selling, transferring, alienating, leasing, sub-leasing,
creating third-party rights, executing any documents, or
creating any encumbrance in respect of the suit property in
any manner whatsoever.
(d) It is further prayed that this Hon'ble Court be pleased to
grant all consequential and ancillary reliefs arising from and
in furtherance of the reliefs prayed for hereinabove.
(d) It is further prayed that this Hon'ble Court be pleased to
award the costs of the suit in favour of the plaintiffs and
against the defendants."
3.5. Defendant Nos.3, 5 and 6 appeared and moved an
application Exh-20 under the provisions of Order VII Rule 11
of the Code for rejection of plaint. After hearing the parties, the
learned trial Court vide order dated 05.09.2017 allowed the
application and rejected the plaint of plaintiffs under Order VII
Rule 11(d) of the Code.
3.6. Being aggrieved and dissatisfied with impugned order, the
original plaintiffs are before this Court.
4. Learned advocate for the appellant would submit that the
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order dated 23.03.2016 unequivocally granted permission to the
appellant to institute a fresh suit. In such circumstances, Section
14(3) of the Limitation Act, 1963 squarely applies. It is
submitted that there is nothing on record to suggest any absence
of good faith or lack of due diligence on the part of the
appellant in prosecuting the first suit. On the contrary, the very
fact that the Learned Civil Court, after satisfying itself,
exercised jurisdiction under Order XXIII Rule 1(3) CPC, is
conclusive proof of the bona fide conduct of the appellant. The
cause of action arose on 26.12.2007, pursuant to the notice and
the reply received from Opponent No. 4. The limitation period
of three years would therefore ordinarily expire thereafter. The
first suit was filed on 15.06.2010. After excluding the entire
period during which the first suit was bona fide prosecuted, as
mandated under Section 14 of the Limitation Act, the second
suit was filed within approximately 1 month and 21 days, well
within the remaining period of limitation. Learned advocate for
the appellant has placed reliance upon the following decisions
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and submitted that time spent in bona fide prosecution of an
earlier proceeding, withdrawn with liberty due to jurisdictional
defects or other causes of a like nature, deserves to be excluded
while computing limitation:
i. Mohinder Singh (Dead) through Legal Heirs v. Paramjit
Singh & Others reporte in (2018) 5 SCC 698.
ii. Parwan Constructions Pvt. Ltd. v. Ranjitsingh Linga
& Ors. reported in 2016 (1) AIIMR 252- / Equivalent
citation: 2015 LawSuit (Bom) 512.
4.1. Learned Senior advocate for the appellant respectfully
submitted that the present proceedings are well within limitation
and the appellant is fully entitled to the benefit of Section 14(1)
and 14(3) of the Limitation Act, 1963 and prayed that present
appeal may be allowed. Except above, no other submissions are
made by learned advocate for the appellant.
5. Per contra, learned advocate for the respondent would
submit that the application under Order 7 Rule 11 of the Code
was filed mainly contending that the appellant/plaintiffs had
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filed the present suit qua cancellation of sale-deed which was
executed by defendant No.1 in favour of defendant No.2 which
was dated 30.06.1999 and therefore, the said suit being filed,
beyond the period of 3 years, it was barred by the law of
limitation and was liable to be rejected. It is further submitted that
the said application was also filed on the ground that the earlier
suit being Regular Civil Suit No. 159/2010 was filed against the
defendants which then came to be withdrawn by the plaintiffs
on 22.03.2016, which made it clear that in-spite of being aware
of the entire factual scenario the present suit has been filed
beyond the limitation period and hence was liable to be rejected
under Order 7 Rule 11(d) of the limitation act. It is further
submitted that learned trial Court has passed the order allowing
the said application where, the main finding inter alia that the
plaintiffs, though being aware of the registered sale-deed that
came to be executed by defendant No.1 in favor of defendant
No.2 which was dated 30.06 l999 yet the present suit has been
filed by the plaintiffs after limitation period of 3 years and
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therefore, in light of the judgment of this Court in the case of
Becharbhai Zaverbhai Patel vs Jashbhai Shivabhai Patel
reported in LAWS(GJH)-2012-4-272 is squarely applicable.
Plaintiffs gained knowledge about the registered sale-deed
which was executed by defendant no. 1 in favor of defendant
No.2 when the plaintiffs came to know about the auction sale
done by defendant No.4 qua which a notice was issued by the
plaintiff dated 26.12.2007. Therefore, it became crystal clear
that the plaintiffs, though being aware of the registered sale-
deed that came to be executed by defendant No.1 in favor of
defendant No.2 which was dated 30.06.1999, yet the present suit
has been filed by the plaintiffs after the limitation period of 3
years and therefore, the present suit is liable to be rejected under
the provisions of Order 7 Rule 11(d) of the Code of Civil
Procedure, 1908.
5.1. It is further submitted that the contention of the appellant
with regard to Section 14 applicability is baseless and it is
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legally not sustainable. Benefit of Section 14 of the Limitation
Act, 1960, would not be available to the plaintiffs since the
earlier Suit was not filed before the wrong forum, it was filed
before a court which was without jurisdiction. Also, the earlier
court did-not have any inhibition to grant the relief prayed for in
the said suit and therefore, Section 14 sub-section (3) of the
Limitation Act 1963, where the wording used is "without
jurisdiction" or "other cause of like nature" would be causes,
which would be neighbours of the cause that it is instituted
before a court without jurisdiction and in the present case, it is
not the situation even on bear reading of the averments of the
plaint. In the entire plaint without any addition or subtraction
and without considering any defence of the defendants, it is read
as it is, the only contention to come out of limitation is with
regard to liberty in earlier suit. Ratio laid down by the Hon'ble
Apex Court in Arifa vs Abhiman Apartment Co-operative
Housing Society Ltd reported in 2025 (0) AIJEL-SC 75614
squarely applies at the stage of Order 7 Rule 11, since it is a
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pure question of law and in the present case no evidence is
required to be lead, to decide any other issues and this is the
issue on which the plaint is rejected which is just and proper.
The principal relief in the suit is of challenging the sale-deeds
dated 30.06.1999 & 27.01.2014, and therefore, other
consequential reliefs would have no bearing since the principle
relief is time barred, which would be clear from the averments
of the plaint itself. The aforesaid principle is no longer res
integra as per the law laid down by the Hon'ble apex court in
Rajpal Singh vs Saroj (Deceased) Through Lrs. reported in
2022(0) AIJEL-SC 69292. There is not a single averment in the
plaint which could bring the suit with-in the limitation period so
as to challenge the sale- deed dated 30.06.1999. As far as the
submission that other sale-deed dated 27.01.2014 is within
limitation is concerned, the said issue is also decided by the this
Hon'ble Court in Chimanbhai Shanabhai Mali & Ors vs Patel
Jagdishbhai Parshottambhai & Ors in R/First Appeal
No.3500 in 2017, where also 2012 and 2015 sale-deeds were
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challenged wherein this Hon'ble court by applying the law laid
down by the Hon'ble Apex Court in the case of Raghwendra
Sharan Singh v. Ram Prasanna Singh (Dead) by Lrs reported
in (2020) 16 SCC 601 observed that the plaintiffs could not be
allowed to circumvent the law of limitation by clever drafting,
more particularly by avoiding circumstances, by which the suit
is obviously barred by law of limitation.
5.2. Grant of liberty to file a fresh suit would not obviate the
bar of limitation and therefore, the provision of Section 14 of
the limitation act would clearly stand excluded there-by
rendering the plaint liable to be rejected under the provisions of
Order 7 Rule 11 of the Code of Civil Procedure 1908, without
leading any evidence whatsoever on the ground of limitation
and therefore, the judgment and decree of the Ld. Trail Court is
justified and does not warrant any interference. Except above,
no other submissions are made by learned advocate for the
respondent.
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6. I have considered the submissions canvassed by learned
advocates for the parties and on perusal of the paper-book, it
appears that the appellants herein had filed Special Civil Suit
No.47 of 2016 challenging registered sale deeds dated
30.06.1999 executed by defendant No.1 in favour of defendant
No.2, sale deed executed by defendant No.4 in favour of
defendant No.3 27.01.2014. Plaintiffs have further sought
peaceful and vacant possession of the suit property from
defendants and further prayed for a relief of permanent injunction
restraining defendants from creating any third-party rights. It is
the contention of the plaintiffs in the plaint that the suit plot
bearing plot No.6/B of plot No.6 admeasuring about 330 square
yards was purchased by Jayantibhai Prahlad Bhai Patel from
erstwhile owners by a registered sale deed dated 28.12.1992 and
thereafter the suit plot was sold by Jayantibhai Prahlad Bhai Patel
to defendant No.1-Anurup Babulal Sheth by registered sale dated
20.05.1994. Thereafter, the plaintiffs by registered sale deed
dated 24.10.1997 purchased the suit land from defendant No.1,
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and since then, plaintiffs are the owners and in possession of the
suit plot. Defendant No.1 thereafter without any authority and
right, sold the suit plot to defendant No.2 by executing a
registered sale dated 30.06.1999. The plaintiffs have also alleged
fraud committed by defendant No.1 in executing the said
registered sale deed. On receiving information that defendant
No.4-Gujarat State Finance Corporation intended to sell the suit
plot, plaintiffs issued a notice dated 23/26.12.2007 to defendant
No.4. In response to the said notice, defendant No.4 informed
plaintiffs that defendant No.2 by mortgaging the suit plot had
availed a loan of Rs.19 lakhs and on failure to repay the loan
amount, defendant No.4 has taken possession of suit plot on
12.01.2001 under Section 29 of the State Financial Corporation
Act, 1951 and has transferred the suit plot in favour of defendant
No.3. Resultantly, plaintiffs filed a suit being Regular Civil Suit
No.159 of 2010. Pending the suit, the suit plot was transferred by
a registered sale deed dated 27.01.2014 by defendant No.3 in
favour of defendant Nos.5 and 6. It appears from reading of
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averments made in the plaint that the Regular Civil Suit No.159
of 2010 came to be withdrawn by plaintiffs on 22.03.2016 after
seeking permission of the Court to file a fresh suit on the same
cause of action. The order permitting plaintiffs to institute a fresh
suit was not assailed before any higher forum by the defendants
of Regular Civil Suit No.159 of 2010. Thereafter, the present suit
came to be filed on 13.05.2016.
7. Defendant Nos.3, 5 and 6 filed an application under Order
VII Rule 11 of the Code, praying for rejection of the plaint. The
learned Court below allowed the application and rejected plaint
on 05.09.2017. The core issue present in the first appeal is
whether in the background of the above said facts, the order of
rejection of plaint under order VII Rule 11 (d) is a justifiable
order or not. Before addressing the controversy, it would be
profitable to reproduce the relevant provision of Rule 11 (d) of
Order VII of the Code which is as under:-
"ORDER VII
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Plaint
Rule 11. Rejection of plaint.- The plaint shall be rejected in the
following cases:-
(a) ****.
(b) ****.
(c) ****.
(d) Where the suit appears from the statement in the plaint to be
barred by any law;"
8. It is well-known and well-settled proposition of law that
while deciding the application under order VII Rule 11(d) of the
Code, only the averments made in the plaint, and the documents
in support of the plaint are to be considered. No defence of
defendant nor documents in support of the defence can be
considered. The reading of the plaint has to be a meaningful
reading. Whether plaintiff succeeds on the basis of averments
made in the plaint or whether the plaintiffs are entitled for the
reliefs claimed in the plaint cannot be gone into at the stage of
deciding the application under Order VII Rule 11 of the Code.
9. In the present case, the contention of plaintiffs-appellants is
that by a registered sale deed dated 24.10.1997 they purchased
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the suit plot from defendant No.1. The plaintiffs are the registered
title-holder of the suit plot. Undisputedly, defendant No.1
executed registered sale deed in favour of defendant No.2 with
respect to the suit land on 30.06.1999. On the date of the suit,
defendant No.1 cannot be said to be the owner and in possession
of the suit plot, and as per the settled proposition of law that the
possession would go with the registered document. Legal
presumption can be drawn that plaintiff was handed over
possession of the suit plot on 24.10.1997 by defendant No.1.
When plaintiff noticed that defendant No.4-Corporation has
started the process to transfer the suit plot to third-party, notice
correspondence, ensued between plaintiff and the Corporation,
and by a reply to the notice, the Gujarat State Finance
Corporation intimated plaintiff that defendant No.2 had availed a
loan over the suit plot by mortgaging the same with Corporation
and on failure to repay the loan amount, the possession of the suit
land has been obtained by Corporation on 12.01.2001. And the
suit plot has been transferred in favour of defendant No.3. Suit
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being Regular Civil Suit No.159 of 2010 came to be instituted by
plaintiff was challenging the registered sale deed of 30.06.1999,
and the transfer of the suit plot in favour of defendants declared
to be illegal. Pending the suit, defendant-Corporation auctioned
the suit plot to defendant No.3 of Regular Civil Suit No.47 of
2016 by a registered sale deed dated 27.01.2014. The first suit
came to be withdrawn with permission to file a fresh suit.
Undisputedly, fresh suit came to be filed by plaintiffs is for the
following prayers.
"(10) Therefore, plaintiffs are seeking the following reliefs:
(a) That this Hon'ble Court be pleased to declare the sale
deeds pertaining to Plot No. 6/B, being non-agricultural land
admeasuring 330 sq. yards (effective area 276 sq. metres),
forming part of Survey/Block No. 95, situated at Village
Khatrej, Taluka Kalol, District Gandhinagar (formerly
Mehsana), registered before the Sub-Registrar, Kalol vide
Serial No. 994/1999 dated 30.06.1999 and Serial No.
558/2014 dated 27.01.2014, as well as the subsequent sale
deed registered on 04.12.2013 vide Serial No. 8183, whereby
the property was purportedly transferred to Defendant No. 3
as illegal, unlawful, null and void. It is further prayed that
this Hon'ble Court be pleased to declare that the defendants,
by virtue of the aforesaid transactions, have not acquired any
right, title, interest, ownership, possession, tenancy, or share
in the suit property.
(b) It is further prayed that this Hon'ble Court be pleased to
declare the possession of the defendants over the suit
property as illegal and unauthorized, and to direct the
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defendants to hand over peaceful, vacant and direct
possession of the suit property to the plaintiffs. In the event of
failure to comply with such direction, this Hon'ble Court may
be pleased to appoint a Court Commissioner and restore
possession of the suit property to the plaintiffs through due
process of law.
(c) It is further prayed that this Hon'ble Court be pleased to
grant a permanent injunction, restraining the defendants,
their agents, servants, heirs, successors and assigns from
selling, transferring, alienating, leasing, sub-leasing,
creating third-party rights, executing any documents, or
creating any encumbrance in respect of the suit property in
any manner whatsoever.
(d) It is further prayed that this Hon'ble Court be pleased to
grant all consequential and ancillary reliefs arising from and
in furtherance of the reliefs prayed for hereinabove.
(d) It is further prayed that this Hon'ble Court be pleased to
award the costs of the suit in favour of the plaintiffs and
against the defendants."
10. Plaintiffs have alleged in the plaint that sale deed dated
30.06.1999 is illegal and defendant No.2 does not get any right,
title or interest in suit land. It is also alleged that defendant No.1
while selling the suit plot to defendant No.2, suppressed the fact
that defendant No.1 has already sold suit plot to plaintiffs in the
year 1997. It is stated by plaintiff that the transfer of plot by
defendant No.4 in favour of plaintiff No.3 is only on paper and
defendant No.4 without ascertaining ownership, right auctioned
suit plot and transferred the suit plot in favour of defendant No.3.
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Had any search been carried out by defendant No.4 in the office
of Sub-Registrar, the entry of registered documents would have
been found. There is no quarrel in the aspect that the first suit
being Regular Civil Suit No.159 of 2010 was well within the
period of limitation. Defendant No.2 having purchased the suit
plot during the existence of the registered sale deed dated
24.10.1997 cannot get a better title than plaintiffs. On the date of
sale in favour of defendant No.2, defendant No.1 was not having
legal right to execute any writing, deeds qua suit land. The
question of possession that who was in possession of suit plot on
the date of registered sale deed dated 30.06.1999 is a question of
fact. In the plaint, it is stated that Corporation is alleged to have
obtained possession of suit on 12.01.2001, is also question of fact
and such question cannot be tried or looked into while
considering application under Oder VII Rule 11 of the Code.
Plaintiffs have not only prayed for cancellation of sale deeds but
has also prayed for possession of suit plot. The question whether
defendants were in possession and if they were in possession of
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suit land was a lawful possession or not is a pure question of fact.
Such questions require trial to be undergone. When plaintiffs
have prayed for more than one prayers in the plaint and if one of
the prayers is barred by any provisions of law but for the
remaining prayers the suit requires evidence to be recorded, the
plaint cannot be rejected in piecemeal. Therefore, the provisions
of Order VII Rule 11 of the Code cannot be invoked and the
Court cannot reject the entire plaint at the threshold. Whether
plaintiffs are entitled to the reliefs sought for, in the plaint or the
suit is maintainable or not, is outside the scope of Order VII Rule
11 of the Code. The question involved in the suit, considering the
averments made in the plaint are mixed questions of law and
facts. The question of applicability of Section 14 of the
Limitation Act, in the present set of facts, remains academic, and
therefore, I am not delving into it.
11. Considering the facts and averments made in the plaint, the
decisions which have been relied upon by learned advocate for
the respondents, are not helpful to the case of the respondents.
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12 Resultantly, First Appeal is allowed. Regular Civil Suit
No.47 of 2016 is restored to its original file. Since the suit is of
2016, learned trial Court shall expedite the proceedings of the
suit and conclude the same as expeditiously as possible
preferably within a period of one year from the date of receipt of
copy of this order. The connected Civil Application with the
captioned First Appeal stands disposed of.
13. Parties are directed to give full co-operation to the learned
trial Court in getting the suit adjudicated and shall strictly adhere
to the provisions of Order 16 Rule 1 of the Code. Parties are also
directed not seek any unnecessary adjournments and file any
unnecessary applications for adjournment.
(D. M. DESAI,J)
RINKU MALI
