Sikkim High Court
Ms. Mamta Gurung And Ors vs Chief Secretary And Ors on 8 April, 2024
Author: Meenakshi Madan Rai
Bench: Meenakshi Madan Rai
THE HIGH COURT OF SIKKIM : GANGTOK
(Civil Appellate Jurisdiction)
Dated : 8th April, 2024
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SINGLE BENCH : THE HON'BLE MRS. JUSTICE MEENAKSHI MADAN RAI, JUDGE
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RFA No.03 of 2023
Appellants : Mamta Gurung and Others
versus
Respondents : Chief Secretary and Others
Appeal under Order XLI, Rules 1 and 2 of
the Code of Civil Procedure, 1908
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Appearance
Mr. S. S. Hamal, Senior Advocate (Legal Aid Counsel) with Mr. Tashi
Wongdi Bhutia, (Legal Aid Counsel) Advocate for the Appellant
No.1.
Mr. S. S. Hamal, Senior Advocate with Mr. Tashi Wongdi Bhutia, Mr.
Mahesh Subba and Mr. Pradeep Sharma, Advocates for the
Appellants No.2 to 6.
Mr. S. K. Chettri, Government Advocate for the Respondents No.1
to 4.
Ms. Laxmi Chakraborty, Advocate for the Respondents No.5 to 11.
Ms. K. D. Bhutia, Advocate for the Respondent No.12.
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JUDGMENT
Meenakshi Madan Rai, J.
1. The Appellants are aggrieved by the Order of the Court
of the Learned District Judge, Special Division - I, Sikkim, at
Gangtok, in Title Suit No.02 of 2021 (Mamta Gurung and Others vs.
The Chief Secretary, Government of Sikkim and Others), dated 27-03-
2023, which dismissed the Plaint of the Plaintiff/Appellants herein,
in terms of Order VII Rule 11(d) of the Code of Civil Procedure,
1908 (hereinafter, the ―CPC‖). Before this Court, the Appellants
contend that the suit is not barred by limitation as erroneously
opined in the impugned Order.
2. Learned Senior Counsel for the Appellants advanced
the argument that where a suit is based on a fraud of the
Mamta Gurung and Others vs. Chief Secretary and Others
Defendant, the period of limitation will not commence until the
Plaintiff has discovered the fraud or the mistake or could, with
reasonable diligence, have discovered it, or in the case of a
concealed document, until the Plaintiff first had the means of
producing the concealed document or compelling its production.
That, a fraud was committed by the Respondent No.12 on the
Appellants, by registering and mutating a portion of the suit
property surreptitiously in his name. That, the Respondents No.3
and 4 are complicit in the matter having permitted the procedure of
fraudulent registration. That, despite this circumstance, the
Learned Trial Court was remiss in not discussing Section 17(1)(a)
of the Limitation Act, 1963, (hereinafter, the ―Limitation Act‖), in
the impugned Order although it was raised in the pleadings. That,
the commission of the fraud came to the knowledge of the
Appellants No.4 and 5 only in the year 2002, on the demise of their
mother in 2001, who till then had remained in charge of the
properties. Thereafter, on tracing the parcha khatiyan, dated 18-
06-1992, it came to light that the land measuring 3.65 acres
purchased by their father in the year 1961 was recorded only as
2.20 acres. The cause of action is a continuing one as on their
knowledge of the fraud, on 25-12-2002 the Appellant No.4 took
immediate steps and submitted an application to the Respondent
No.4, seeking demarcation of their land. In the absence of any
response, another application was filed by him on 17-05-2006 and
on the continued unresponsiveness of the Respondents No.3 and 4,
it was followed by one on 03-03-2008 and on 10-07-2013. That, on
12-09-2013 spot verification as called for in terms of the Notice of
Respondent No.4, dated 10-09-2013, failed to materialise. Another
Mamta Gurung and Others vs. Chief Secretary and Others
application dated 19-11-2014 was then filed by the Appellant No.4
and on spot verification the area of their land was found to be
reduced but the Respondents No.5 to 11 failed to produce relevant
documents pertaining to the recording of an area of 1.45 acres in
their names, (which is the area of land reduced from that of the
Appellants) or in the name of any other person, from that of late
Chandra Bir Gurung alias Chandra Bahadur Gurung, the father of
the Appellants No.4 and 5. On 31-08-2015 the Appellant No.4 filed
an application before the Respondent No.4 seeking a restraining
Order against the Respondents No.5 to 11, from mutating the suit
land in the name of any third party, till the finalization of the
dispute, which was allowed on 24-05-2016. On 04-05-2018 the
Appellant No.4 filed another application before the Respondent
No.3, to which, on 19-09-2019 the Appellants were directed to
approach the Civil Court. That, the suit was filed on 02-03-2021 for
declaration, recovery of possession and other consequential reliefs
against the Respondents No.5 to 12. That, the Appellants No.4 and
5 continuously pursued their matter before the concerned authority
who failed to address their grievances and the Appellants cannot be
deprived of their rights on account of the passivity of the
government authorities. That, on each of the dates reflected above
the cause of action was continuing, apart from which as it was a
case of fraud the limitation would fall within the ambit of Section
17(1)(a) of the Limitation Act.
(i) Learned Senior Counsel for the Appellants relied on P.
V. Guru Raj Reddy represented by GPA Laxmi Narayan Reddy and
Another vs. P. Neeradha Reddy and Others to bring home the
assertion that rejection of the Plaint under Order VII Rule 11 of the
(2015) 8 SCC 331
Mamta Gurung and Others vs. Chief Secretary and Others
CPC is a drastic power which truncates civil action at the threshold
and should not be resorted to on the mere asking, sans proof. In
light of the submissions supra the impugned Order thereby
deserves to be set aside and the suit restored to File.
3. Learned Counsel for the Respondents No.5 to 11
contesting the above submissions canvassed that the first
application was filed by the Appellant No.4 on 25-12-2002 followed
by another one after almost four years in 17-05-2006, revealing his
lack of interest and diligence. That, contrary to the grounds put
forth by the Appellants with regard to the period of limitation, the
application dated 25-12-2002 reveals that they were aware of the
reduced area of the suit land in the year 2002 itself but failed to
furnish reasons for not pursuing the matter. Parcha khatiyan
issued on 18-06-1992 in the joint names of the Appellants No.4
and 5 reveals the reduced area of the land but they chose not to
agitate the matter before any forum. Moreover, no allegations of
fraud were made in the applications of the Appellant No.4, who
only sought measurement and demarcation of plot no.808, nor was
the issue raised before the Learned Trial Court. That, the
argument of fraud on the edifice of Section 17(1)(a) of the
Limitation Act is not tenable as Article 56 of the Limitation Act
specifies that to declare forgery of an instrument the period of
limitation is three years from the date of knowledge. Besides, it
is unimaginable that Appellant No.4 after seeking mutation of the
property in 1992, as instructed, allegedly by his mother, would not
pursue the matter or remained oblivious of the developments,
when both Appellants No.4 and 5 were adults at the relevant time.
That, the cause of action arose in the year 1992 when the
Mamta Gurung and Others vs. Chief Secretary and Others
Appellants No.4 and 5 applied for the parcha khatiyan but the suit
was filed only on 02-03-2021, which is thus clearly barred by
limitation. Hence, the impugned Order of the Learned Trial Court
warrants no interference.
4. Learned Counsel for the Respondent No.12 adopted
and endorsed the submissions advanced by Learned Counsel for
the Respondents No.5 to 11 and put forth the contention that even
assuming that Appellants No.4 and 5 had knowledge of the
reduction of the land from the year 2002, they failed to take timely
steps. That, as the Order of the Learned Trial Court does not suffer
from any infirmity, the petition seeking intervention of this Court
be dismissed.
5. Learned Government Advocate for the State-
Respondents No.1 to 4 had no submissions to advance.
6. To take stock of the matter and for its convenient
comprehension the facts are set out briefly. The Appellants No.1, 2
and 6 are the grandchildren of one late Chandra Bir Gurung alias
Chandra Bahadur Gurung, through his son Lok Nath Gurung alias
Purna Kumar Gurung, the Appellant No.5. The Appellant No.3 is
the grandson of late Chandra Bir Gurung alias Chandra Bahadur
Gurung, being the son of Appellant No.4.
7. The Appellants filed a suit for declaration, recovery of
possession and other consequential reliefs, contending that the
Respondents No.5 to 12 have no right, title and interest over plot
nos.808/1154 and 808/1155, which are portions of plot no.808.
That, plot no.808 measuring an area of 3.65 acres, located at
Namcheybong Block, East Sikkim, was purchased by late Chandra
Bir Gurung alias Chandra Bahadur Gurung from one late Tika Ram
Mamta Gurung and Others vs. Chief Secretary and Others
Sharma Niroula, vide a sale deed on 16-02-1961, which was duly
registered on 20-02-1961. The remaining three plots of land
owned by late Tika Ram Sharma Niroula i.e., plot nos.805, 806 and
807 were sold to Respondent No.12. The Respondent No.12 being
a high ranking influential government officer at that time recorded
an area of 1.45 acres from plot no.808 in his name, by
surreptitious means in the year 1969 and later sold the plots to one
Hem Karna Bhandari and his six brothers in the year 1972. In
1972, late Chandra Bir Gurung alias Chandra Bahadur Gurung
passed and his wife became the guardian of the family but made
no land transactions in respect of plot no.808. In 1992, their
mother directed them to mutate the land of Chandra Bir Gurung
alias Chandra Bahadur Gurung, jointly in the names of Appellants
No.4 and 5. Accordingly they submitted an application before the
relevant authority but did not pursue the matter in deference to
their mother, the family head, besides they were preoccupied in
discharging their respective government duties. In 2001, the
mother of the Appellants No.4 and 5 passed and in 2002 the
Appellants No.4 and 5 on tracing out the ―parcha khatiyan", came
to learn of the reduction of land measuring 3.65 acres purchased
by their father to 2.20 acres and recorded as such in parcha
khatiyan, dated 18-06-1992. Consequently, on 25-12-2002, the
Appellant No.4 applied to the office of the Revenue Officer and
Sub-divisional Officer, Pakyong, seeking demarcation of the land
which the State-Respondents failed to take up. This was followed
by a series of applications viz. on 17-05-2006, 03-03-2008 and 10-
07-2013. The spot verification on the application filed by the
Appellant No.4 on 19-11-2014 revealed that plot no.808 measured
Mamta Gurung and Others vs. Chief Secretary and Others
2.20 acres only, while an additional land measuring 1.30 acres had
been illegally mutated in the name of Hem Karna Bhandari. Hence,
the Appellants claim that the cause of action is continuous from
2002 as already delineated hereinabove and that the suit does not
fall within the ambit of Order VII Rule 11(d) of the CPC.
8. Having considered the facts and circumstances placed
before me, I deem it necessary to re-produce Order VII Rule 11 of
the CPC hereinbelow which reads as follows;
"11. Rejection of plaint.--The plaint shall be
rejected in the following cases:--
(a) where it does not disclose a cause of action;
(b) where the relief claimed is undervalued, and the
plaintiff, on being required by the Court to
correct the valuation within a time to be fixed
by the Court, fails to do so;
(c) where the relief claimed is properly valued but
the plaint is written upon the paper
insufficiently stamped, and the plaintiff, on
being required by the Court to supply the
requisite stamp-paper within a time to be fixed
by the Court, fails to do so;
(d) where the suit appears from the statement in
the plaint to be barred by any law;
(e) where it is not filed in duplicate;
(f) where the plaintiff fails to comply with the
provision of rule 9:
Provided that the time fixed by the Court for the
correction of the valuation or supplying of the requisite
stamp-paper shall not be extended unless the Court, for
reasons to be recorded, is satisfied that the plaintiff was
prevented by any cause of an exceptional nature for
correcting the valuation or supplying the requisite stamp-
paper, as the case may be, within the time fixed by the
Court and that refusal to extend such time would cause
grave injustice to the plaintiff."
9. In the context of the matter under consideration it
needs no reiteration that the Limitation Act prescribes a time limit
for institution of all suits, appeals and applications. Order VII Rule
11(d) of the CPC provides that where a suit appears from the
averments in the Plaint to be barred by any law the Plaint shall be
rejected. In State of Punjab and Others vs. Gurudev Singh2 it was
(1991) 4 SCC 1
Mamta Gurung and Others vs. Chief Secretary and Others
observed that the Court must examine the Plaint and determine
when the right to sue first accrued to the Plaintiff and whether on
the assured fact the Plaint was within time. The words ‗right to
sue' means the right to seek relief by means of legal proceeding.
The right to sue accrues only when the cause of action arises. The
suit must be instituted when the right asserted in the suit is
infringed, or when there is a clear and unequivocal threat to
infringe such right by the Defendant against whom the suit is
instituted.
(i) The rejection of a Plaint under Order VII Rule 11 of the
CPC is a radical power conferred on the Court to terminate civil
action at the threshold. Consequently, it is only if the averments in
the Plaint ex facie do not disclose a cause of action or on a reading
thereof the suit appears to be barred under any law that the Plaint
can be rejected.
10. In the matter at hand, in the first instance it appears
that the Learned Trial Court has invoked Article 65 of the Limitation
Act to reject the Plaint on the ground of limitation as provided
under Order VII Rule 11(d) of the CPC. It would be beneficial at
this juncture to refer to the decision of the Supreme Court in Saroop
Singh vs. Banto and Others , wherein it propounded as follows;
28. The statutory provisions of the Limitation Act
have undergone a change when compared to the terms of
Articles 142 and 144 of the Schedule appended to the
Limitation Act, 1908, in terms whereof it was imperative
upon the plaintiff not only to prove his title but also to
prove his possession within twelve years, preceding the
date of institution of the suit. However, a change in legal
position has been effected in view of Articles 64 and 65 of
the Limitation Act, 1963. In the instant case, the plaintiff-
respondents have proved their title and, thus, it was for the
first defendant to prove acquisition of title by adverse
possession. As noticed hereinbefore, the first defendant-
appellant did not raise any plea of adverse possession. In
that view of the matter the suit was not barred.
(2005) 8 SCC 330
Mamta Gurung and Others vs. Chief Secretary and Others
29. In terms of Article 65 the starting point of
limitation does not commence from the date when the right
of ownership arises to the plaintiff but commences from the
date the defendant's possession becomes adverse.
(See Vasantiben Prahladji Nayak v. Somnath Muljibhai
Nayak [(2004) 3 SCC 376].)
30. ―Animus possidendi‖ is one of the ingredients of
adverse possession. Unless the person possessing the land
has a requisite animus the period for prescription does not
commence. As in the instant case, the appellant
categorically states that his possession is not adverse as
that of true owner, the logical corollary is that he did not
have the requisite animus. (See Mohd. Mohd. Ali v. Jagadish
Kalita [(2004) 1 SCC 271], SCC para 21.)
(i) The Supreme Court in Madanuri Sri Rama Chandra Murthy
vs. Syed Jalal4 observed as follows;
"7. .................. It is needless to observe that the
question as to whether the suit is barred by any law, would
always depend upon the facts and circumstances of each
case. The averments in the written statement as well as the
contentions of the defendant are wholly immaterial while
considering the prayer of the defendant for rejection of the
plaint. ..............................."
(ii) In light of the facts and circumstances placed before
this Court, it is clear that the issue of limitation in this matter is a
mixed question of law and facts, for the reason that, although at
the first instance on perusal of the Plaint if the year of knowledge is
to be reckoned as 2002, it would seem that the suit is barred by
limitation, however as emerges from the pleadings, it is evident
that the Appellants on coming to learn of the parcha khatiyan and
the shortfall in the land recorded in their joint names, approached
the concerned authorities in the same year. It cannot be said that
the Appellants No.4 and 5 sat on their hands as the applications
filed by them before the revenue authorities and relied upon by
them to fortify their case, narrates a different story. The role of
the State-Respondents on this count too requires consideration
when computing limitation. Consequently, these aspects have to
be examined on the anvil of the prevalent laws and the Plaint
(2017) 13 SCC 174
Mamta Gurung and Others vs. Chief Secretary and Others
cannot be thrown out at the threshold on the basis of dates relied
on by the Respondents. In such circumstances and in light of the
discussions above, the Order of the Learned Trial Court is quashed
and set aside.
(iii) Appeal allowed.
(iv) The suit be restored in its original number in the
Register of Civil Suits and determined in accordance with law.
(v) It is clarified here that I have not expressed any
opinion on the merits of the case.
11. Parties to bear their own costs.
12. Copy of this Judgment be transmitted to the Learned
Trial Court forthwith along with its records.
( Meenakshi Madan Rai )
Judge
08-04-2024
Approved for reporting : Yes
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