B. Neeraja vs K. Pandu
2022 Latest Caselaw 758 Tel

THE HON'BLE SRI JUSTICE A. VENKATESHWARA REDDY
                         CRP No.2083 of 2019
ORDER:

1. This Civil Revision Petition is filed under Article 227 of the

Constitution of India, assailing the order dated 31.07.2019 in I.A.

No.860 of 2018 in O.S.No.648 of 2017 on the file of the learned IV

Additional Junior Civil Judge, City Civil Court, Hyderabad.

2. This application in IA No.860 of 2018 was filed by the

petitioner/first defendant under Order-7, Rule-11 (d) read with Section

151 of the Civil Procedure Code (for short 'CPC') praying the Court

to reject the plaint in OS No.648 of 2017.

3. Heard learned counsel for the petitioner/first defendant.

Though the respondents/plaintiffs 1 to 3 have engaged Mr. N. Joy,

learned counsel, despite granting ample opportunity, there was no

representation. Perused the material placed on record. For the sake of

convenience, the parties are hereinafter referred to as plaintiffs and

defendants as arrayed in the original suit.

4. The brief facts of the case are that the plaintiffs have filed the

original suit for cancellation of sale deed document No.6407 of 1983,

dated 14.12.1983, which was executed during pendency of partition

suit OS No.196 of 1974 on the file of the IX Junior Civil Judge, City

Civil Court, Hyderabad and also for consequential injunction against

the defendants 1 to 5. The first defendant alone has filed this

application. The defendants 3 to 5 are the official defendants, being

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Greater Hyderabad Municipal Corporation (GHMC), represented by

its Commissioner, the Zonal Commissioner, Central Zone and the

Assistant City Town Planner.

5. The case of the plaintiffs is that, disputes arose among the joint

family members warranting a partition suit in OS No.196 of 1974 on

the file of the IX Junior Civil Judge, City Civil Court, Hyderabad for

partition of the suit schedule properties mentioned therein and final

decree was passed on 09.03.1995 allotting plots formed out of the

land of Ac.1.21 guntas. As per the final decree, the plaintiffs are in

possession and enjoyment of plot Nos.6 & 7. While so, in the first

week of February 2017 some unknown persons have entered into the

suit schedule property - a portion of plot No.7, started making

arrangements for change of nature of the property. On questioning, it

was revealed that the first defendant has purchased the said property,

through a registered sale deed document No.6407 of 1983, dated

14.12.1983 before the Joint Sub.Registrar-II, District Registrar's

office, Hyderabad, allegedly executed by one Sri Kothapally Babaiah

Patel. In fact, the said Babaiah Patel cannot execute such sale deed in

favour of the first defendant, as he is not the owner of such property

and that too, during pendency of the partition suit, initially the

plaintiffs have approached the police concerned, later filed the present

suit.

6. It is further pleaded in the plaint that, the said sale deed

document No.6407 of 1983 is liable to be cancelled as it is invalid, not

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binding on the plaintiffs as the property is covered by part of plot

No.7, one of the two plots allotted to the plaintiffs by virtue of the

final decree. In the plaint, the cause of action is shown as 14.12.1983

when the sale deed document No.6407 of 1983 is executed during

pendency of the partition suit OS No.194 of 1974 and that on

09.03.1995 when the final decree is passed in OS No.196 of 1974 and

finally, in the first week and last week of February 2017, when the

defendants attempted to trespass into the suit schedule property. The

first defendant after appearing before the trial Court has filed this

application in IA No.860 of 2018 under Order-7, Rule-11 (d) read

with Section 151 CPC to reject the plaint.

7. The main averments of the affidavit filed by the first defendant

in support of her application are that she is the owner and possessor of

the house bearing No.7-1-309/48/1 admeasuring 128 square yards

situated at Balakampet, Hyderabad, having purchased the same,

through a registered sale deed document No.6407 of 1983, dated

14.12.1983. At the time of purchase, it was consisting only one room

and one bathroom, but later she has developed it by making

construction of ground floor, which was regularized by Municipal

Corporation of Hyderabad (MCH), vide permit No.399 of 1975 by

collecting penal amount of Rs.10,025/-. Thereafter, she has made

construction of first floor duly obtaining permission from MCH, vide

permit No.41/88 of 1996, dated 25.10.1996. She has also constructed

the second floor, applied for building regularization and it is pending

with GHMC. Therefore, she is in possession and enjoyment of the

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house property bearing No.7-1-309/48/1 admeasuring 128 square

yards consisting of ground + three floors from 1983 onwards. In fact,

in the final decree in IA No.786 of 1986, only plot No.6 was allotted

to the share of plaintiffs and plot No.7 to which the suit property is

part and parcel has been allotted to the share of Smt. Venkatamma and

others.

8. It is further averred in the affidavit filed by the first defendant

having purchased the said house from the head of the joint family by

name K. Babaiah Patel she is in possession and enjoyment of the

same. Later, the said plot No.7 is allotted to Venkatamma and others.

Accordingly, the plaintiffs are nothing to do with the plot No.7 or the

suit schedule property purchased by the first defendant under

registered sale document No.6407 of 1983, dated 14.12.1983. The

decree in OS No.196 of 1974 and in AS No.220 of 1982 dated

26.12.1985 has obtained finality, vide IA No.786 of 1986, dated

09.03.1995, but later the final decree was modified as per the common

orders in IA Nos.479, 480 and 481 of 2002, dated 24.10.2002. At no

point of time, the first defendant, who purchased the suit schedule

property by way of registered sale deed, was impleaded in any of

these proceedings. Therefore, if the date of final decree in IA No.786

of 1986 is being taken into consideration for starting point of

limitation, the suit for cancellation of sale deed, limitation would

commence from 09.03.1995 and for 12 years it would continue and

the suit has to be filed in the year 2007. If the modification order of

the final decree by way of common order, dated 24.10.2002 is taken

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into consideration, the limitation would expire in the year 2014. But,

the Original Suit is filed in the year 2017 and viewed from any angle,

it is barred by limitation. The sale deed executed on 14.12.1983, vide

document No.6407 of 1983. The suit is filed after 35 years of

execution of sale deed and it is barred by limitation. Plot No.7 of suit

schedule property in OS No.196 of 1974 has not been allotted to the

share of plaintiffs. There is no cause of action for filing the suit and

accordingly prayed to reject the plaint.

9. The trial Court after considering the rival contentions dismissed

the application with an observation that the plaint discloses the cause

of action and the first defendant has sought for rejection of the plaint

purely on the material facts which have to be decided after conducting

full-fledged trial, it cannot be decided before conducting full-fledged

trial and the suit cannot be rejected at the threshold by merely basing

on the averments of the plaint. Aggrieved by the said findings

recorded by the Court below, this civil revision petition is filed.

10. Be it stated that undisputedly, the first defendant has purchased

the suit schedule property, through a registered sale deed document

No.6407 of 1983, dated 14.12.1983. It is the assertion of the plaintiff

that plot Nos.6 & 7 were allotted to the plaintiffs in the final decree

that was passed, vide IA No.786 of 1986 in OS No.196 of 1974 on

09.03.1995. Whereas, the contention of the first defendant is that plot

No.7 is allotted to Smt. Venkatamma and others, the plaintiffs are

nothing to do with the said plot.

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11. Be that as it may, the first defendant has purchased the land of

128 square yards being part of plot No.7 during pendency of the suit

in OS No.196 of 1974. It is a registered sale deed. A judicial notice

can be taken about execution of the registered sale deed under Section

3 of Transfer of Property Act. That apart the first defendant having

purchased the said plot, constructed house, obtained permission,

regularized the construction that was made without permission, it was

within the knowledge of everybody including the plaintiffs. But at no

point of time, the plaintiffs did not choose to bring the first defendant

on to record in the partition suit in OS No.196 of 1974 or in AS

No.220 of 1982 or in the final decree proceedings in IA No.786 of

1986 or in the applications filed for modification of the final decree,

vide IA Nos.479, 480 and 481 of 2002, wherein common order dated

24.10.2002 was passed. For the first time, as per the averments in the

plaint, they noticed that the first defendant in the suit schedule

property in February 2017. But the cause of action as mentioned in

the plaint shows that the cause of action arose on 14.12.1983 when the

sale deed was executed, vide document No.6407 of 1983 and again on

09.03.1995 when final decree was passed in OS No.196 of 1974 and

finally, in the first and last week of February 2017, when the

defendants attempted to trespass into the schedule of property.

12. Order-7, Rule-11 CPC deals with rejection of the plaint. The

present application is filed to reject the plaint under Rule-11 (d) of

Order 7 CPC alleging that from the statement in the plaint the suit

appears to be barred by limitation. Such conclusion that the suit is

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barred by limitation has to be drawn only from the averments made in

the plaint and there cannot be any addition or subtraction. Thus, it is

crystal clear that at the time of deciding application filed under Order-

7, Rule-11 (d), the Court is required to examine the pleadings in the

plaint and if in the pleadings it appears to the Court that there is a

ground that the suit is barred by any law and such argument is

substantiated by any provision of law, then the trial Court can exercise

its powers to reject the plaint under Order-7, Rule 11 (d) of CPC.

Such power is vested with the trial Court so as to restrict the

unnecessary trial where the suit appears to be barred by limitation.

13. The learned counsel for the petitioner/first defendant has relied

on Raghavendra Sharan Singh v. Ram Prasanna Singh (dead) by LRs1

and also on the principles laid by the Hon'ble Supreme Court of India

in Dahiben v. Arvindbhai Kalyaniji Bhanusali (Gajra) dead, through

legal representatives and others2.

14. In Raghavendra Sharan Singh's case (1 cited supra) a gift deed

was executed on 06.03.1981 in favour of the appellant and the suit

was filed after more than 22 years of execution of that deed, the trial

Court rejected the application on the ground that the issue of

limitation was to be adjudicated only after the evidence are led by

both the parties and the High Court in the revision confirmed the order

of the trial Court rejecting the application under Order-7, Rule-11

CPC. In that case, till the year 2003, neither the plaintiff nor his

2019 (5) Scale 70

(2020) 7 SCC 366

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brother have challenged the execution of gift deed dated 06.03.1981

nor at any time claimed that the gift deed dated 06.03.1981 was a

showy deed of gift. The Hon'ble Supreme Court while considering

the said facts held as follows:

"In view of the above and for the reasons stated above, we are of the opinion that both the High Court as well as the learned trial Court have erred in not exercising the powers under Order-7 Rule-11 of the CPC and in not rejecting the plaint in exercise of powers under Order-7 Rule 11 of the CPC. For the reasons stated above, the impugned judgment and order passed by the High Court as well as the trial Court cannot be sustained and the same deserve to be quashed and set aside. Consequently, the impugned judgment and order passed by the High Court dated 12.03.2013 as well as the order passed by the Munsif, Danapur rejecting the Order 7 rule 11 application filed by the original defendant are hereby set aside. Consequently, the application submitted by the appellant herein-original defendant to reject the plaint under Order 7 Rule 11 of the CPC is hereby allowed and the plaint, being Title Suit No.19 of 2003 is hereby rejected."

15. In Dahiben's case (2 cited supra), it is held by the Hon'ble

Supreme Court that the provisions of Order-7, Rule-11 CPC are

mandatory in nature. If any of the grounds specified in clause (a) to

(e) are made out, the Court is bound to reject the plaint and that the

Court must be vigilant against camouflage or suppression and if the

suit is found to be vexatious and abuse of process of Court, it should

exercise its drastic power under Rule-11 CPC to reject the plaint.

16. In that case, the Hon'ble Supreme Court while dealing with

limitation under Articles 58 and 59 of Limitation Act observed that

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the Court must determine when right to sue first accrued and that the

right to sue accrues only when cause of action arises and the suit must

be instituted when right asserted in suit is infringed or there is clear

and unequivocal threat of infringement of any right.

17. This Court in K.L.V. Prasada Rao and others v. K. Venkateswara

Goud and others3, while dealing with the similar facts for rejection of

the plaint held that as per Section 3 of Transfer of Property Act, the

registration of sale deed itself is deemed notice of such instrument and

consequently a suit filed beyond three years from the date of

registration of sale deed for cancellation of such sale deed is clearly

barred by limitation. It was further held that whether the plaint

discloses a cause of action or not is essential. It is a question of fact,

which has to be made out by reading the averments in the plaint to

decide whether a cause of action has been set out in the plaint and

when the order of the Court is not based on the facts set out in the

plaint and erroneously concludes that there is a cause of action to file

and maintain suit and such order is liable to b set aside.

18. Reverting back to the facts of the present case, admittedly the

original suit No.648 of 2017 is filed against the first defendant and

others in the month of March 2017 for cancellation of registered sale

deed document No.6407 of 1983, dated 14.12.1983 and for

consequential injunction. The cause of action arose as per para-16 of

the plaint on 14.12.1983 when the sale deed was executed in favour of

2008 (1) A.P.L.J. 135 (HC)

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the first defendant and again on 09.03.1995 when the final decree was

passed in OS No.196 of 1974 and finally in the first and last weeks of

February 2017 when the defendants attempted to trespass into the suit

schedule property.

19. From the averments in the plaint, if the cause of action starts

running from 14.12.1983 or from the final decree dated 09.03.1995 or

as per the averments in the affidavit filed in support of this application

from the date of common order dated 24.10.2002, modifying the final

decree, the suit is hopelessly barred by limitation, as the original suit

is filed almost after 35 years from the date of execution of sale deed

dated 14.12.1983 and a judicial notice of execution of such sale deed

can be taken as per Section 3 of Transfer of Property Act.

20. Further, the suit is also barred by limitation from the date of

final decree dated 09.03.1995 since the suit is filed in the year 2017.

Even from the date of common order dated 24.10.2002, whereunder a

final decree dated 09.03.1995 is modified, the suit is beyond

limitation either under Article 58 or under Article 59 of Limitation

Act to cancel or set aside the sale deed No.6407 of 1983, dated

14.12.1983.

21. In such facts and circumstances, for the reasons stated above,

viewed from any angle, the plaint in OS No.648 of 2017 filed for

cancellation of the sale deed document No.6407 of 1983, dated

14.12.1983, pending on the file of the learned IV Additional Senior

Civil Judge, City Civil Court, Hyderabad, is liable to be rejected in

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exercise of jurisdiction under Order-7, Rule-11 (d) CPC not only on

the ground that it is barred by limitation, but also on the ground that

the cause of action does not survive. The order impugned dated

31.07.2019 under revision wherein the Court below declined to

exercise such jurisdiction conferred on it under law is vitiated by a

patent error of jurisdiction warranting interference of this Court.

22. In the result, the Civil Revision Petition is allowed. The

impugned order dated 31.07.2019 in I.A.No.860 of 2018 in

O.S.No.648 of 2017 is hereby set aside. The said I.A. shall stand

allowed rejecting the plaint in OS No.648 of 2017 on the file of the

learned IV Additional Junior Civil Judge, City Civil Court,

Hyderabad. However, in the circumstances of the case, there shall be

no order as to costs.

23. As a sequel, miscellaneous applications, if any pending, shall

stand closed.

_______________________________ A. VENKATESHWARA REDDY, J.

Date: 18.02.2022 Isn