Iqbal Chhipa vs Loon Chand
2021 Latest Caselaw 12169 Raj

HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR S.B. Civil Revision Petition No. 43/2019

Iqbal Chhipa S/o Shri Lal Mohammad, Aged About 51 Years, R/o Ladanu, District Nagaur.

----Petitioner Versus

1. Loon Chand S/o Shri Keshrimal, R/o Ladanu, District Nagaur. Through Power Of Attorney Holder Jitendra S/o Shri Prabhu Dayal, R/o Ladanu, District Nagaur.

2. Mohanlal S/o Shri Laxmi Chand, R/o Ramgarh Shekhawati, Outside Bisau Darwaza, District Sikar.

3. Rafiq Chhipa S/o Shri Haif, R/o Ladanu, District Nagaur.

4. Sub Registrar Officer, Ladanu, District Nagaur.

                                                                ----Respondents


For Petitioner(s)        :     Mr. J.K. Bhaiya.
For Respondent(s)        :     Mr. V.K. Bhadu.
                               Mr. Manish Dadhich.



           HON'BLE MR. JUSTICE ARUN BHANSALI

                                Judgment

04/08/2021

This revision petition is directed against the order dated

24.1.2019 passed by Senior Civil Judge, Didwana (Nagaur),

whereby, the application filed by the petitioner under Order VII

Rule 11 CPC has been rejected.

The suit was filed by respondent No.1 - plaintiff against the

petitioner and three others for cancellation, declaration and

injunction in respect of the suit property on 18.3.2017 inter alia

seeking cancellation of sale deeds dated 11.6.2012 and 8.7.2013

and declaring them as null and void. The suit was filed with the

(2 of 9) [CR-43/2019]

averments that the plaintiff by registered sale deed dated

16.3.2012 purchased the land from Prabhudayal, since then he

was in possession of the property. It was alleged that on

11.6.2012 defendant No.1 - Mohan Lal without any right, title and

possession, transferred the same to defendant No.2 - Rafiq

Chhipa. The said defendant No.1 - Mohan Lal had purchased the

said land by registered sale deed from Daanmal, who in the year

1946 had transferred the same to his son Laxmi Narayan and,

therefore, he could not have transferred the same all over again.

It was claimed that the defendants were aware of the

transfer in favour of the plaintiff despite that on 11.6.2012, the

transfer was executed, which is void ab initio. It was then averred

that when the plaintiff came to know of the sale deed on

19.6.2012, he filed a suit for injunction alongwith an application

for temporary injunction, wherein, on 13.2.2014 his application

was allowed and injunction against dispossession was granted.

However, during pendency of the said suit, defendant No.2 - Rafiq

Chhipa transferred the property to defendant No.3 - Iqbal Chhipa

by registered sale deed dated 8.7.2013 despite the fact that he

had no possession and title to the suit property.

Submissions were made that as the transfer was affected in

violation of provisions of Section 52 of the Transfer of Property

Act, 1882, the same was void. Further submissions were made

that on 22.7.2017, Iqbal Chhipa tried to break upon the lock of

the gate, based on the sale affected in his favour, the plaintiff

made inquiries from Tehsil office Ladnu, when it was disclosed that

on 8.7.2013 itself the defendant - Rafiq Chhipa had transferred

the land to Iqbal Chhipa, copies of the sale deed were procured

(3 of 9) [CR-43/2019]

and the defendants were told that they had no right, on which,

they threatened dispossession.

It was claimed that transfer in favour of defendants - Rafiq

Chhipa and Iqbal Chhipa were void ab initio and, therefore, the

suit for declaration was filed and a prayer for injunction was also

made. Application under Section 80(2) CPC was also filed. Based

on the above averments, prayers were made seeking permanent

injunction and declaration regarding the sale deeds being void ab

initio.

The defendant No.3 - petitioner filed an application under

Order VII Rule 11 CPC inter alia with the submissions that as the

plaintiff had indicated in para-4 of the plaint that he became

aware of the sale deed dated 11.6.2012 on 19.6.2012, the suit

having been filed in the year 2017, was barred by limitation and

was liable to be rejected.

Submissions were contested by the plaintiff with the

submissions that the transfer in favour of defendant No.3 was

made on 8.7.2013, which fact in the pending suit, was not

disclosed and the plaintiff became aware of the same on

27.2.2017, when attempt was made to break upon the lock of the

gate and as such, the suit was not barred by limitation.

The trial court, after hearing the parties, by the order

impugned came to the conclusion that for disposal of an

application filed under Order VII Rule 11 CPC, the court is required

only to peruse the averments made in the plaint, wherein, though

the plaintiff has averred that he became aware about the sale

deed dated 11.6.2012 on 19.6.2012, however, qua the sale deed

dated 8.7.2013, he became aware on 27.2.2017 and as the suit

has been filed on 18.3.2017 and as further from perusal of the

(4 of 9) [CR-43/2019]

plaint, it is not disclosed that the suit has been filed after

prescribed limitation and as to when the plaintiff became aware of

the sale deed, it can only be decided once the evidence is led by

the parties. From perusal of the plaint, it cannot be said that the

suit is barred by limitation and consequently, rejected the

application.

Learned counsel for the petitioner with reference to the

averments made in the plaint submitted that specific averments

have been made by the plaintiff that the sale deed dated

11.6.2012 came to his notice on 19.6.2012, based on which, he

filed a suit for permanent injunction and as such, it is established

from the averments made in the plaint itself that the plaintiff

became aware of the sale deed dated 11.6.2012 on 19.6.2012

itself, however, as the present suit has been filed on 18.3.2017

and the limitation in this regard is governed by Article 58 of the

Limitation Act, 1963 ('the Act of 1963'), the suit is ex facie barred

by limitation and once it is found that the suit qua sale deed dated

11.6.2012 is barred, the subsequent sale deed dated 8.7.2013

cannot be questioned and, therefore, the plaint was liable to be

rejected.

Learned counsel for the respondent - plaintiff vehemently

opposed the submissions. It was submitted that the sale deeds

dated 11.6.2012 and 8.7.2013 are void ab initio and as such, in

fact no declaration was required and the plaintiff could have

ignored the same and as such, it cannot be said that the suit was

barred by limitation.

Submissions were made that qua the sale deed dated

8.7.2013, specific averments have been made in the plaint

regarding the plaintiff becoming aware of the said sale deed on

(5 of 9) [CR-43/2019]

27.2.2017 and as the suit has been filed on 18.3.2017, the same

qua the sale deed dated 8.7.2013 is within limitation and as a part

of the plaint, cannot be rejected, the application filed by the

petitioner has rightly been dismissed by the trial court and the

revision petition deserves to be dismissed.

Reliance was placed on judgment in Shakti Bhog Food

Industries Ltd. v. Central Bank of India: AIR 2020 SC 2721.

I have considered the submissions made by learned counsel

for the parties and have perused the material available on record

i.e. the copy of the plaint.

The avements relevant for disposal of the present petition

reads as under:-

"3- ;g fd izfroknhx.k la[;k 1 o 2 dks ;g Hkyh&Hkkafr Kku Fkk rFkk tkudkjh Fkh fd mDr Hkwfe dk foØ;&i= yw.kpUn oknh ds uke fu'ikfnr fd;k gqvk gS rFkk oknh dk gh LokfeRo] dCtk] mi;ksx o miHkksx gSA fQj Hkh izfroknh la[;k 1 us izfroknh la- 2 ds i{k esa fnukad 11-06-2012 dks jftLVMZ foØ;&i= ds }kjk mDr Hkwfe dk foØ; dj fn;kA blfy, mDr foØ;&i= izkjEHkr% gh "kwU; ,oa voS/k gS ftldk oknh ij dkuwuu ckbZfMax izHkko ugha j[krk gSA 4- ;g fd oknh dks tc mDr foØ;&i= dk fnukad 19-06-2012 dks irk pyk rks oknh us izfroknh la[;k 2 ds fo:) flfoy tt] ykMuwa esa LFkkbZ fu'ks/kkKk dk okn fd;k rFkk vLFkkbZ O;kns"k dk izkFkZuk&i= is"k fd;k ftlesa U;k;ky; Jheku us fnuakd 13-02- 2014 dks oknh dk izkFkZuk&i= Lohdkj djrs gq, ;g vkns"k fn;k fd ^^vizkFkhZx.k rkQSlyk ewy okn fookfnr tk;xk dk foØ;&iath;u uk rks Lo;a djsaxs rFkk uk gh fdlh vU; ls djok;saxs rFkk izkFkhZ dks fdlh izdkj ls fookfnr tk;xk ls csn[ky ugha djsaxsA** mDr nkok oknh ds }kjk fnukad 19-06-2012 dks izfroknh la[;k 2 ds f[kykQ is"k fd;k x;k vkSj nkSjkus nkok izfroknh la[;k 2 jQhd Nhaik us izfroknh la[;k 3 ds bdcky Nhaik ds i{k esa fnuakd 08-07-2013 ds tfj;s jftLVMZ foØ;&i=

(6 of 9) [CR-43/2019]

ds mDr fookfnr Hkw[k.M dk foØ; dj fn;kA tcfd izfroknh la[;k 2 dk mDr Hkw[k.M ij fdlh Hkh izdkj ls dksbZ dCtk o LokfeRo ugha Fkk uk gh dksbZ vf/kdkj FkkA mDr foØ;&i= Hkh izkjEHkr% gh "kwU; ,oa voS/k FkkA"

(emphasis supplied)

Further the reliefs claimed in the plaint reads as under:- "13- vr% nkok is"k dj oknh fuosnu djrk gS fd %& ¼d½ ;g fd bl vk"k; dh fpj O;kns"k dh fMØh ikfjr dh tkos fd en la- 1 esa of.kZr vkls&ikls dh oknh ds LokfeRo] dCtk] mi;ksx o miHkksx dh Ø;"kqnk Hkwfe ij izfroknhx.k fdlh izdkj dk dksbZ fuekZ.k ugha djs] uk gh foØ; djs rFkk uk gh gLrkarj.k djs rFkk uk gh oknh dks csn[ky djs rFkk uk gh ,slk dksbZ dk;Z izfroknhx.k djs ftlls fd oknh ds fgrksa ij foijhr izHkko iM+sA ¼[k½ ;g fd fnukad 08-07-2013 dk foØ;&i= o fnukad 11-06-2012 dk foØ;&i= izkjEHkr% gh uy ,.M oksbZM gS rFkk oknh ij fdlh Hkh izdkj dk dksbZ ckbZfUMax izHkko ugha j[krk gSA blfy, mDr nksuksa gh foØ;&i= fujLr dj "kwU; ,oa voS/k ?kksf'kr djus dh fMØh oknh ds i{k esa ikfjr dh tkosA ¼x½ ;g fd okn dk leLr [kpkZ oknh dks izfroknhx.k ls fnyk;k tkosA ¼?k½ vU; dksbZ U;k;ksfpr vuqrks'k tks fgrdj oknh gks izfroknhx.k ls fnyk;k tkosA"

(emphasis supplied)

A perusal of the averments made in the plaint clearly

indicates that the plaintiff came out with the case that the sale

deed was executed by defendant No.1 in favour of defendant No.2

on 11.6.2012 and the plaintiff became aware of the said sale deed

on 19.6.2012, when he filed suit for permanent injunction

alongwith application for temporary injunction in the court of Civil

Judge, Ladnu, wherein, on 13.2.2014, injunction was granted in

his favour.

Insofar as, the sale deed dated 11.6.2012 is concerned, the

plaint contains specific avements that the plaintiff became aware

of the said sale deed on 19.6.2012 and not only this, he even filed

(7 of 9) [CR-43/2019]

a suit seeking permanent injunction, wherein, temporary

injunction was granted by the court. Qua the sale deed dated

8.7.2013 executed by defendant No.2 in favour of defendant No.3,

it is claimed in the plaint that during pendency of the suit filed by

the plaintiff, the said fact was not disclosed and the plaintiff

became aware of the same only on 27.2.2017 and the present suit

was filed on 18.3.2017.

The reliefs, which have been claimed in the plaint,

specifically relief ¼[k½ indicates that the plaintiff has sought

declaration of both the sale deeds as void and their cancellation.

The limitation for seeking a declaration in the present case, would

be governed by Article 58 of the Act of 1963, which prescribes 3

years as the period of limitation and the time, from which, the

period began to run is 'when the right to sue first accrues'.

Admittedly, from the plaint averments, it is apparent that

qua the sale deed dated 11.6.2012 the plaintiff became aware on

19.6.2012 and from the very date, the right to file suit accrued to

him, nothing has been indicated in the plaint so as to seek

exclusion of any period for the purpose of limitation and once the

cause of action accrued on 19.6.2012 and the present suit seeking

declaration qua sale deed dated 19.6.2012, has been filed on

18.3.2017, the same is ex facie barred by limitation.

The trial court in its impugned order by merely referring to

the averments with regard to sale deed dated 8.7.2013 and

making a passing reference regarding the averments qua sale

deed dated 11.6.2012 has skirted the issue regarding the plaint

being barred by limitation qua the sale deed dated 11.6.2012.

Once it is found that the plaint qua the sale deed dated

11.6.2012 is barred by limitation the subsequent deed dated

(8 of 9) [CR-43/2019]

8.7.2013 cannot be declared to be null and void as it is wholly

based on the sale deed dated 11.6.2012 and as such, the attempt

made to seek calculation of the limitation from the knowledge

acquired by the plaintiff qua sale deed dated 8.7.2013, cannot be

accepted.

So far as the judgment in the case of Shakti Bhog Food

Industries Ltd. (supra) relied on by learned counsel for the

respondent is concerned, Hon'ble Supreme Court in the said

judgment observed that the cause of action for filing a suit would

consist of bundle of facts and the factum of suit being barred by

limitation, ordinarily, would be a mixed question of fact and law,

therefore, invoking Order VII Rule 11 of the CPC is ruled out.

A perusal of the observations made indicates that the Court

while laying down the above proposition has used the word

'ordinarily' and has not laid down that even in a case where the

issue of limitation is raised in an application under Order VII Rule

11 CPC and it is clearly deciphered from the plaint that the suit is

barred, the power under Order VII Rule 11 CPC cannot be

exercised.

In view of the above discussion, as it is apparent that from

the averments made in the plaint that the suit qua the sale deed

dated 11.6.2012 is ex facie barred by limitation and as the sale

deed dated 8.7.2013 is wholly based on the sale deed dated

11.6.2012, which in absence of cancellation / declaration qua sale

deed dated 11.6.2012, cannot be cancelled, the suit filed by the

plaintiff is ex facie barred by limitation.

Consequently, the revision petition filed by the petitioner is

allowed. The order dated 24.1.2019 passed by the trial court is set

aside, the application filed by the petitioner under Order VII Rule

(9 of 9) [CR-43/2019]

11 CPC is allowed and the plaint in Civil Original Suit No. 54/2017

(Loon Chand v. Mohan Lal & Ors.) pending before the Court of

Senior Civil Judge, Didwana, is rejected.

No order as to costs.

(ARUN BHANSALI),J Sumit/-

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