Madhya Pradesh High Court
Ishan Chaurasiya vs Smt. Radha Bai on 17 June, 2025
Author: Gurpal Singh Ahluwalia
Bench: G. S. Ahluwalia
NEUTRAL CITATION NO. 2025:MPHC-GWL:12424
1 CR No. 1217 of 2024
IN THE HIGH COURT OF MADHYA PRADESH
AT GWALIOR
BEFORE
HON'BLE SHRI JUSTICE G. S. AHLUWALIA
ON THE 17th OF JUNE, 2025
CIVIL REVISION No. 1217 of 2024
ISHAN CHAURASIYA
Versus
SMT. RADHA BAI AND OTHERS
Appearance:
Shri Santosh Agrawal, Advocate for the petitioner.
Shri Somesh Sharma, Advocate for respondent Nos.4 to 8.
Shri Dilip Awasthi, Government Advocate for respondent No.11/State.
ORDER
This civil revision, under Section 115 of the CPC, has been filed against
the order dated 8/11/2024 passed by I Additional Judge to the Court of First
Civil Judge, Senior Division, Datia in RCSA No. 53 of 2018, by which the
application filed by applicant under Order 7 Rule 11 CPC has been rejected.
2. Facts necessary for disposal of present revision, in short, are that
respondent No. 1 has filed a suit for declaration of title and permanent
injunction in respect of survey numbers 267, 268, 269, total area 0.939 hectare.
It is the case of plaintiff that aforesaid land is ancestral property of plaintiff and
defendant Nos. 3 to 7. Respondent No. 1/plaintiff got married to Kartar Singh
NEUTRAL CITATION NO. 2025:MPHC-GWL:12424
Mogiya who is resident of village Gangapur, Police Station Bilaua, District
Gwalior. Plaintiff as well as defendant Nos. 3 to 7 belong to Scheduled Tribe.
Since plaintiff, as well as, defendant Nos. 3 to 7 are poor persons and have no
regular source of income, therefore plaintiff was residing in Bombay for doing
labour work. It is pleaded that the land is an un-irrigated land and plaintiff as
well as defendant Nos. 3 to 7 are in joint possession of the property in dispute.
In the year 2010, she came to know that defendant Nos. 3 to 7 and Lakhan have
alienated the property to defendant Nos. 1 and 2. Accordingly, plaintiff
obtained the copy of sale deed and made complaints to police and various
Authorities. From the documents, it came to the knowledge of plaintiff that the
land in dispute was sold for a consideration of Rs.1,65,000/- by registered sale
deed dated 4/12/1997. She was not residing in Datia, therefore the sale deed
does not bear her signature or thumb impression. In the sale deed, defendants
Gangaram, Rajaram and Radheshyam were shown to be minors and defendant
No. 3 had executed the sale deed by claiming himself to be the guardian of
Gangaram, Rajaram and Radheshyam. No permission from the Court was taken
for alienating the property of minors. After the execution of sale deed, Lakhan
expired without any issue. The wife of Lakhan had already expired prior to
death of Lakhan. It was alleged that the property in dispute is ancestral property
and was in joint possession of plaintiff and defendant Nos. 3 to 7. No
consideration amount has been paid by defendant Nos. 1 and 2 either to
plaintiff or to defendant Nos. 3 to 7. The sale deed does not contain the thumb
impression or signatures of plaintiff. In fact, defendant Nos. 1 and 2 are good
friends. Defendant No. 1 is the younger brother of the then MLA of Datia,
namely Rajendra Bharati, who is known as land mafia. Defendant No. 3 was
the supporter of Rajendra Bharati and was working in his field. Whenever
NEUTRAL CITATION NO. 2025:MPHC-GWL:12424
Rajendra Bharati was in need of any member of Scheduled Tribe, then he used
to get thumb impression of defendant No. 3 on documents, and taking
advantage of said situation, someone else was produced by impersonating her
as defendant No. 3. It was further claimed that the sale deed has been got
executed in order to grab the disputed land which is in the ownership and in
possession of plaintiff and defendant Nos. 3 to 7. When plaintiff came to know
about the fraud, she filed a complaint at Police Station Kotwali, District Datia
for offence under Sections 420, 467 and 468 of IPC. ST No. 100/13 is pending
in the Court of Additional District Judge, Datia. Since the police is under the
pressure of MLA of Datia, therefore in order to pressurize the plaintiff, mother
and sister of plaintiff namely Smt. Anguri Bai and Smt. Kesar Bai were also
impleaded as accused. Since the police did not investigate the matter properly,
therefore, defendant Nos. 1 and 2 are pressurizing the plaintiff to enter into a
compromise. When plaintiff refused to compromise the matter, then defendant
Nos. 1 and 2 and their MLA brother as well as 15-20 persons of criminal
antecedents came to the disputed property and tried to dispossess the plaintiff
and defendant Nos. 3 to 7, as well as also tried to demolish the platform
constructed by father of plaintiff. It was claimed that from 7/12/2017, defendant
Nos. 1 and 2 and their antisocial elements are constantly trying to dispossess
the plaintiff and defendant Nos. 3 to 7. Plaintiff was under the impression that
since criminal case is pending, therefore in case if the criminal case is decided
in her favour, then she would get rid of criminal activities done by defendant
Nos. 1 and 2. But since defendant Nos. 1 and 2 and their criminal elements are
constantly pressurizing and threatening the plaintiff, therefore she obtained a
legal advice and then she came to know that she would be required to file a suit
for setting aside sale deed. It was claimed that the suit land is in possession of
NEUTRAL CITATION NO. 2025:MPHC-GWL:12424
plaintiff and defendant Nos. 3 to 7. The consideration amount was not paid and
thus the suit for declaration of title and permanent injunction was filed.
3. Defendant Nos. 1 and 2 filed an application under Order 7 Rule 11 for
dismissal of suit as barred by time. By the impugned order, the said application
has been rejected on the ground that question of limitation is a mixed question
of fact and law.
4. Challenging the order passed by the trial court, it is submitted by counsel
for applicant that under the settled facts and circumstances of the case, question
of limitation would be a pure question of law and relied upon judgment passed
by Supreme Court in the cases of Nikhila Divyang Mehta and another vs.
Hitesh P. Sanghvi and others decided on 15/4/2025 in SLP (C) No. 13459 of
2024, Suresh Kumar Dagla vs. Sarwan and another reported in (2014) 14
SCC 254, and Sri Mukund Bhavan Trust and others vs. Shrimant
Chhatrapati Udayan Raje Pratapsinh Maharaj Bhonsle and another
reported in (2024) 0 Supreme (SC) 1234.
5. Per contra, application is vehemently opposed by counsel for respondent
No.1. It is submitted that since respondent No. 1/plaintiff was already
prosecuting her cause and criminal case is pending, therefore suit is not barred
by limitation.
6. Heard learned counsel for the parties.
7. It is the case of applicant that even if plaint averments are read as they
have been pleaded, then it is clear that in the year 2010 plaintiff had come to
know about the disputed sale deed, whereas the suit has been filed on 1/5/2018.
It is submitted that once the plaintiff had gained knowledge of the disputed sale
deed in the year 2010, then period of limitation for filing civil suit would start
from the said date. Thus, it is clear that she should have filed a suit for
NEUTRAL CITATION NO. 2025:MPHC-GWL:12424
declaring the sale deed as null and void within three years from 2010, whereas
the suit was filed in the year 2018. Therefore, it is submitted that the suit is
barred by limitation.
8. A similar question had arisen before the Supreme Court in the case of
Suresh Kumar Dagla (supra). In that case also, plaintiff had filed the
complaint alleging cheating by fraudulently getting the sale deed executed and
the said complaint was dismissed by Additional Sessions Judge (Special
Judge), Bilaspur by order dated 30/11/1993. Thereafter, the suit was filed on
28/6/2006 for declaration of title and declaring the sale deed dated 30/11/1992
as null and void. It was held by Supreme Court that it is undisputed fact that the
complaint filed by plaintiff was dismissed by order dated 30/11/1993 and
therefore plaintiff had knowledge about the sale deed as back as in the month of
September 1993, whereas the suit was filed on 28/6/2006 for declaration of title
and for declaration of sale deed as null and void and thus it was held that the
suit was barred by time. The Supreme Court has held as under:-
8. We have noticed the rival contentions made on behalf of the
parties and perused the record. As per paragraph 4 of the copy of
the plaint, the case of 1st respondent is that the appellant has
succeeded in registration of the sale deed in favour of himself by
inducing the 1st respondent to believe that he will be executing the
sale deed in favour of the State and the State will pay the
consideration which is not paid till filing of the civil suit and has
not taken possession. Therein at paragraph 17 it is stated that
cause of action arose in the month of August, 2006. The High
Court noticed that paragraph 17 of the plaint is cryptic but
observed that it would not be possible for the Court to infer that
the Ist respondent was having knowledge about the alleged deed
prior to August, 2006.
9. The 1st respondent has not disputed the fact that he had already
instituted a case alleging therein that the appellant inter alia
cheated him while purchasing the said land which was rejected on
NEUTRAL CITATION NO. 2025:MPHC-GWL:12424
30th September, 1993. From the aforesaid fact, it is clear that the
1st respondent had knowledge about the sale deed and as back as
in the month of September, 1993.
10. From the aforesaid fact, it is clear that the suit was barred by
limitation and thereby 1st respondent cannot derive any benefit in
terms of Section 257 of the Chhattisgarh Land Revenue Code,
1959.
9. The Supreme Court in the case of Nikhila Divyang Mehta (supra) has
held as under in paragraphs 15 to 26.
15. In the above factual background, we have been called upon in
this appeal to express our opinion if the suit instituted on
21.11.2017 for the declaration of the Will dated 04.02.2014 and
the Codicil dated 20.09.2014 as null & void, is barred by
limitation in the light of the averments contained in the plaint.
16. It is clear from the plaint that the prayers made therein are
primarily for seeking declaration of the aforesaid Will and Codicil
to be null and void as also all actions in pursuance thereof. The
relief for permanent injunction is dependent upon the success of
the first relief. Therefore, the relief of permanent injunction is
simply a consequential relief. The primary relief being for
declaring the Will and the Codicil to be null and void.
17. There is no dispute to the fact that the Will was executed and
registered by the father of the plaintiff on 04.02.2014 and the
Codicil came to be executed and registered on 20.09.2014. The
plaintiff, as per his own averments in plaint, had acquired
knowledge of the aforesaid Will and Codicil through defendant
Nos. 1, 2 and 3 (sisters), only in the first week of November, 2017.
18. Admittedly, a suit for declaration has to be governed by Part
III of the Schedule contained in the Act. Part III of the Schedule
provides for the limitation for filing suits relating to declarations.
Article 56 deals with declaration with regard to the forgery of an
instrument issued or registered and Article 57 relates to declaration
in respect to adoption.
19. The relief of declaration claimed in the suit at hand does not
fall under Articles 56 and 57 and, therefore, by necessary
implication, Article 58 would stand attracted which provides for a
NEUTRAL CITATION NO. 2025:MPHC-GWL:12424
limitation period of three years to obtain any other declaration
other than that mentioned under Articles 56 and 57. It provides
that for such a declaration, the limitation is three years from the
date when the right to sue first accrues.
20. The use of the words "when the right to sue first accrues" as
mentioned in Article 58 is very relevant and important. It
categorically provides that the limitation of three years has to be
counted from the date when the right to sue first accrues.
21. It would be beneficial to reproduce paragraph 3 (o), paragraph
4 and paragraph 6 of the plaint which contains averments about the
knowledge of the Will and the Codicil, the cause of action and the
reliefs claimed:
"3 (o). After a brave struggle with Cancer, the deceased
took his last breath on 21.10.2014 at 10.35 pm. Pursuant
to his death, defendant nos. 1 to 3 in the first week of
November, 2014 disclosed to the plaintiff that the
deceased had not only executed a Will but had even
executed a Codicil ...................
4. The cause of action has arisen on 04.02.2014, when the
Will bearing Registration No. 707 was registered before
the Sub-Registrar-3 (Memnagar), which was executed by
the father of the Plaintiff Shri Pramodray Sanghavi and
the cause of action further arose on 20.09.2014, when
Codicil to the said Will bearing Registration No. 6213
was executed before the Sub-Registrar-3 (Memnagar).
The cause of action also arose on 21.10.2014, when the
father of the Plaintiff expired and thereafter, the Will and
Codicil of the father of the Plaintiff came to the
knowledge of the Plaintiff. The said Will and Codicil are
absolutely illegal, false and fabricated and therefore, are
required to be declared as null and void. Further, an
injunction is required to be ordered against the
Defendants for not to sell, transfer or alienate any of the
properties as per the directions of the Will and to
maintain status quo till the final disposal of the Suit.
Hence, the present Suit.
6. The plaintiff prays as under:
NEUTRAL CITATION NO. 2025:MPHC-GWL:12424
a. The Hon'ble Court may be pleased to declare
the Will dated 04.02.2014, bearing Registration
No. 707 was registered before the Sub-
Registrar-3 (Memnagar) as well as the Codicil
dated 20.09.2014, bearing Registration No.
6213 was registered before the Sub-Registrar-3
[Memnagar] as null and void;
b. The Hon'ble Court may be pleased to grant
permanent injunction against the defendants,
restraining them from entering into any
transaction in furtherance of the directions in
the Will or Codicil;
c. The Hon'ble Court may be pleased to declare
all the subsequent action taken in furtherance of
the said Will and Codicil as null and void status
quo ante may be restored;
d. Such other and further relief/s as may be
deemed fit and appropriate may be granted;"
22. A bare reading of paragraph 3(o) of the plaint would reveal
that the father of the plaintiff died on 21.10.2014 and that the
plaintiff acquired knowledge of the Will and the Codicil left
behind by him in the first week of November, 2014. Paragraph 4
of the plaint reveals that the cause of action for filing of the suit
first arose on 04.02.2014, then on 20.09.2014 and finally on
21.10.2014 i.e., when the Will was executed, when the Codicil
was executed and when the father of the plaintiff died respectively.
Therefore, according to the plaintiff's own admission, the cause of
action for filing the suit commenced on 04.02.2014 and ended on
21.10.2014.
23. In view of the above, according to the plaintiff's own
averments the suit had to be brought within time of three years
either from the commencement of the cause of action on
04.02.2014 or lastly on 21.10.2014 when his father died or at best
when he acquired knowledge of the Will and the Codicil i.e., the
first week of November, 2014.
24. There is no dispute to the fact that the limitation for filing of
the suit falls under Article 58 of the Schedule to the Act wherein
the limitation prescribed is three years. It may be pertinent to note
NEUTRAL CITATION NO. 2025:MPHC-GWL:12424
that the limitation of three years is from the date when the cause of
action first arose. So, according to the plaintiff's case, the cause of
action first arose on 04.02.2014 and, therefore, the limitation
would end on 04.02.2017. However, even if the limitation is
calculated from the date of knowledge of the Will and/or the
Codicil, it would run from the first week of November, 2014 and
would end in the first week of November, 2017. The suit
admittedly was instituted on 21.11.2017; much beyond the first
week of November, 2017 and as such is apparently barred by
limitation, for which neither any defence is required to be looked
into nor any evidence in support is needed to be adduced.
25. Section 3 of the Act contemplates that every suit instituted
after the period prescribed under the Act shall be dismissed even if
limitation has not been set up as a defence. The aforesaid
provision is of a mandatory nature and cannot be ignored by the
courts even if not pleaded or argued by the defence. It is obligatory
upon the court to dismiss the suit if it is, on the face of it, barred
by limitation. The aforesaid provision has been enacted for public
good and to give quietus to a remedy after lapse of a particular
period, as a matter of public policy, though without extinguishing
the right in certain cases. Therefore, once a limitation prescribed
for instituting a cause of action expires and even if limitation is not
set up as a defence, it obliges the court to dismiss the suit as barred
by limitation.
26. In the present case, the plaintiff not only categorically states
that he acquired knowledge of the Will and the Codicil in the first
week of November, 2014 but also that the cause of action for the
suit first arose on 04.02.2014 and lastly on 21.10.2014. The suit
was filed on 21.11.2017. As such on the own averments of the
plaintiff, the suit was instituted beyond limitation attracting Order
VII Rule 11 (d) CPC."
10. The contention that question of limitation is a mixed question of fact and
law was also negatived by Supreme Court in the case of Nikhila Divyang
Mehta (supra) by holding that after reading the pleadings made in the plaint, if
it is clear as a noonday that the suit is barred by time, then no evidence is
NEUTRAL CITATION NO. 2025:MPHC-GWL:12424
required to be adduced by the parties and under that circumstance, the question
of limitation would become a pure question of law which does not require
leading of evidence.
11. Considering the fact that even according to the plaintiff, she came to
know about the disputed sale deed in the year 2010 and despite that the suit was
filed in the year 2018, this Court is of considered opinion that the suit was
clearly barred by time.
12. Under these circumstances, this Court is of considered opinion that the
trial court committed material illegality by rejecting the application filed under
Order 7 Rule 11 CPC.
13. Accordingly, order dated 8/11/2024 passed by I Additional Judge to the
Court of First Civil Judge, Senior Division, Datia in RCSA No. 53 of 2018, is
hereby set aside, and application filed by applicant under Order 7 Rule 11, CPC
is allowed.
14. RCSA No. 53 of 2018 pending in the Court of I Additional Judge to the
Court of First Civil Judge, Senior Division, Datia is dismissed as barred by
time.
15. The revision succeeds and is, hereby, allowed.
(G.S. Ahluwalia)
Judge
(and)
