Telangana High Court
M/S. 22Nd Century Infrastructures And ... vs Mohd. Ismail Khan on 17 September, 2025
IN THE HIGH COURT FOR THE STATE OF TELANGANA
CIVIL REVISION PETITION No.234 of 2024
Between:
M/s 22nd Century Infrastructures & Projects
Pvt Ltd., Hyderabad, reptd by Challagonda
Ramesh Rao.
... Petitioner
And
Mohd. Ismail Khan,
S/o Late Mohd. Nazeer Khan and
four others.
...Respondent
JUDGMENT PRONOUNCED ON 17.09.2025
HON'BLE JUSTICE LAXMI NARAYANA ALISHETTY
1. Whether Reporters of Local newspapers : Yes/No
may be allowed to see the Judgment?
2. Whether the copies of judgment may be
marked to Law Reporters/Journals? : Yes/No
3. Whether her Lordship wishes to
see the fair copy of the Judgment? : Yes/No
_______________________________________
JUSTICE LAXMI NARAYANA ALISHETTY
2
LNA, J
CRP. No.234 of 2024
HON'BLE JUSTICE LAXMI NARAYANA ALISHETTY
CIVIL REVISION PETITION No.234 of 2024
% 17.09.2025
Between:
# M/s 22nd Century Infrastructures & Projects
Pvt Ltd., Hyderabad, reptd by Challagonda
Ramesh Rao
.... Petitioner
And:
$ Mohd. Ismail Khan,
S/o Late Mohd. Nazeer Khan and
four others.
....Respondent
< Gist:
> Head Note:
! Counsel for the petitioner: Sri Y.Rama Rao,
^ Counsel for Respondent: Sri Deepak Mishra
For Sri Safdar Mirza
? Cases Referred:
1. (2014) 10 SCC 459
2. (2024) SCC Online 3844
3. (2020) 7 SCC 366
4. (1998) 2 SCC 70
5. (2022)12 SCC 641
6. (2017) 13 SCC 174
7. (2020) 17 SCC 260
8. (2025) 5 SCC 198
9. (2002) 10 SCC 501
3
LNA, J
CRP. No.234 of 2024
10. (2012) 1 SCC 656
11. (2011) 9 SCC 126
12. AIR 2000 SC 3146
13. 2021 SCC Online 1061
14. (2020) 7 SCC 366
4
LNA, J
CRP. No.234 of 2024
HON'BLE SRI JUSTICE LAXMI NARAYANA ALISHETTY
CIVIL REVISION PETITION No.234 of 2024
ORDER:
The Revision Petition is filed assailing the order dated
23.11.2022 passed in I.A.No.429 of 2021 in OS.No.202 of 2022 on
the file of the Principal Senior Civil Judge, Ibrahimpatnam, Ranga
Reddy District, whereby and whereunder the application filed under
Order VII Rule 11 CPC was dismissed.
2. Heard Sri Y.Rama Rao, learned counsel for revision petitioner,
and Sri Deepak Mishra, learned counsel appearing for Sri Safdar
Mirza, learned counsel-on-record for respondent Nos.1 and 2. It is
endorsed in the affidavit that respondent Nos.3 to 5 are only
proforma parties.
3. The petitioner herein is defendant No.1, respondent Nos.1 and 2
herein are plaintiff Nos.1 and 2, respectively, in the suit. For
convenience, hereinafter, the parties will be referred to as they are
arrayed in the suit.
LNA, J
4. The brief facts of the case, required for disposal of the present
Revision Petition, are that plaintiffs filed the suit in OS.No.877 of 2020,
which was subsequently re-numbered as OS.No.202 of 2022 against the
defendants seeking to declare the registered sale deeds bearing document
Nos.3806/2017, dated 10.05.2017, 2037/2013, dated 02.04.2013,
3147/2013 dated 09.07.2013 and 47/2015, dated 05.11.2014, executed in
respect of suit 'A', 'B' 'C' and 'D' schedule properties, respectively, as
null and void and simultaneously, to deliver possession of the suit 'A' to
'D' schedule properties to the plaintiffs, by duly holding the plaintiffs to
be owners of the said properties.
5. Pending adjudication of the suit, defendant No.1 filed an
application in IA.No.429 of 2021 under Order VII Rule 11 CPC to reject
the plaint. In the affidavit, filed in support of the said application,
defendant No.1, represented by its authorized signatory, inter alia,
averred that originally, Mohammed Gouse Ali Khan was the absolute
owner and pattedar of a total extent of Acs.273-00 gts, which includes
the suit 'A' to 'D' schedule properties; that he expired in the year 1959
and as such, the suit 'A' to 'D' schedule properties devolved upon on his
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wife-Hameed Khatoon by way of succession, vide Faisal Patti of the year
1960 and she continued as pattedar till 1971-1972; that these lands were
under the possession of protected tenant by name Chand Khan; that after
the death of the said Chand Khan, his son Osman Ali Khan continued to
be in possession of the land in Sy.Nos.100, 149, 150 and 151, total
admeasuring an extent of Acs.29.25gts; that the said Osman Ali Khan
purchased the same from Hameed Khatoon vide registered sale deed
bearing document No.1254/1967 dated 10.07.1967, who, in turn, sold the
same to one Anugu Raji Reddy (Defendant No.2) vide registered sale
deed No.113/1971 dated 03.03.1979; and that defendant No.1 purchased
the same from defendant No.2 under registered sale deed bearing
document No.3806/2017 dated 10.05.2017.
5.1. It was further averred that Hameed Khatoon died in the year 1981;
that in the event, the daughters of Mohammed Gouse Ali Khan, viz., Siraj
Khatoon, Rukhiya Khatoon and Hafeez Khatoon, were born by the year
1959, they ought to have claimed partition of the properties either within
three years of their attaining majority, if they were minors, (or) within
twelve years, if they were already majors by the year 1959. Therefore, for
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computing the limitation, the period should be reckoned from the year
1959 (upon the death of Mohd. Gouse Ali Khan) or from the year 1981
(upon the death of Hameed Khatoon) and the suit ought to have been filed
within the limitation period of twelve years from either date, however, the
suit is filed in the year 2020, i.e., about 61 years after the death of Mohd.
Gouse Ali Khan, and 39 years after the death of Hameed Khatoon, which
clearly indicate that the suit is hopelessly barred by limitation.
5.2 It was further averred that there is no cause of action for filing the
suit and that, though the plaintiffs are not in possession of the suit
schedule properties, they have paid the Court fees under Section 24(d) of
the AP Court Fees and Suits Valuation Act, instead of under Section 37 of
the said Act, which is improper and on the aforesaid grounds, defendant
No.1 prayed to reject the plaint.
6. A counter was filed by the plaintiffs denying the averments made
in the aforesaid application, wherein it was contended that a clear cause
of action for filing the suit for the reliefs mentioned therein is made out
in the plaint and therefore, the contention of defendant No.1 that the suit
is liable to be rejected on the grounds of lack of cause of action and
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improper payment of Court fee is untenable; that the cause of action is a
mixed question of facts and law, which can be decided only after full-
fledged trial of the suit and therefore, the application filed by defendant
No.1 is pre-mature and the same cannot be entertained and accordingly,
prayed to dismiss the application.
7. The trial Court, on considering the pleadings of both the parties
and on hearing the learned counsel appearing for both the parties, vide
impugned order dated 23.11.2022 dismissed the application by observing
that in the plaint, it was the case of the plaintiffs that after their marriage
they moved to Hyderabad and as there was no near relative or family
member to look after the suit schedule properties, some land grabbers
managed to delete the name of their mother-Hameed Khatoon in the
revenue records, which appeared till 1971-72 and the name of Osman
Khan, who is son of the protected tenant by name Chand Khan, was
incorporated; that the said Osman Khan managed to palm off the said
lands to defendant No.2, who, in turn, sold the same to defendant No.1
vide registered sale deed dated 10.05.2017; that the plaintiffs are
claiming right over the suit schedule properties as being succeeded from
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their mother; and that the plaintiffs have shown the cause of action to
bring the suit within the limitation.
8. The trial Court further observed that the issue as to whether the
suit is barred by limitation or not is a mixed question of fact and law,
which can be decided only after full-fledged trial. Challenging the said
order, the present Revision Petition is filed by defendant No.1.
9. Learned counsel for revision petitioner/defendant No.1 submitted
that defendant No.1 purchased the suit schedule property under registered
sale deed bearing document No.3806/2017, dated 10.05.2017 and the
vendor of defendant No.1 purchased the same in the year 1971 vide sale
deed bearing document No.113/1971 and as such, the plaintiffs are not in
possession of the suit schedule properties and in such an event, the Court
fee should have been paid under Section 37 of the AP Court Fees and
Suits Valuation Act, however, the plaintiffs have paid Court fee under
Section 24(d) thereof, and the trial Court failed to appreciate this aspect.
9.1. Learned counsel further submitted that even if the averments and
the allegations made by the plaintiffs in the plaint are taken into
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consideration, the same does not constitute cause of action for filing the
suit and therefore, the suit is liable to be rejected on that ground also.
9.2. Learned counsel further submitted that the limitation period of
twelve (12) years for filing the suit should be reckoned either from the
year 1959, when Mohd. Gouse Ali Khan died, or from the year 1981,
when his successor i.e., his wife died, on the contrary, the plaintiffs filed
the suit in the year 2020, which is 61 years from the death of Mohd.
Gouse Ali Khan and 39 years from the death of Hameed Khatoon and
thus, the suit is hopelessly barred by limitation.
9.3. Learned counsel for revision petitioner submitted that though the
plaintiffs are claiming rights over the suit schedule properties by way of
Hiba, one of the three essentials under the Mohammadan Law,
i.e., delivery of possession is not proved by the plaintiffs, therefore, the
Hiba is invalid in the eye of law and as such, no valid title flows to the
plaintiffs.
9.4 Learned counsel further submitted that the aspects of absence of
cause of action, improper payment of Court fee and limitation are not
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properly appreciated by the trial Court and hence, the trial Court has
committed grave error in dismissing the application filed by defendant
No.1 and prayed to allow this Revision Petition.
10. In support of his contentions, learned counsel for revision
petitioner/defendant No.1 relied upon the following judgments of the
Hon'ble Supreme Court:
(i) Rasheeda Khatoon (dead) through Lrs. Vs. Ashiq
Ali, S/o Lieutenant Mohd (dead) through Lrs 1
(ii) Shri Mukund Bhavan Trust and Others Vs. Shrimant
Chhatrapati Udayan Raje Pratapsinh Maharaj
Bhonsle and Another 2
(iii) Dahiben Vs. Arvindbhai Kalyanji Bhanusali (Gajra)
dead through Lrs and Others 3
11. The categorical observations made by the Hon'ble Apex Court
in Rasheeda Khatoon's case (cited supra) at paragraph 11 of the
1(2014) 10 SCC 459
2(2024) SCC Online 3844
3(2020) 7 SCC 366
LNA, J
judgment are extracted as hereunder:-
"In Mahboob Sahab v. Syed Ismail and Others, a two Judge
Bench referred to Section 147 of the Principles of Mahomedan
Law by Mulla, wherein the essentials of valid gift under the
Muhammadan Law have been elucidated and proceeded to
explicate the principle. We think the reproduction of the
relevant passage would be seemly:- "Under Section 147 of the
Principles of Mahomedan Law, by Mulla, 19th Edn., edited by
Chief Justice M. Hidayatullah, envisages that writing is not
essential to the [pic]validity of a gift either of moveable or of
immovable property. Section 148 requires that it is essential to
the validity of a gift that the donor should divest himself
completely of all ownership and dominion over the subject of
the gift. Under Section 149, three essentials to the validity of
the gift should be, (i) a declaration of gift by the donor, (ii)
acceptance of the gift, express or implied, by or on behalf of the
donee, and (iii) delivery of possession of the subject of the gift
by the donor to the donee as mentioned in Section 150. If these
conditions are complied with, the gift is complete. Section 150
specifically mentions that for a valid gift, there should be
delivery of possession of the subject of the gift and taking of
possession of the gift by the donee, actually or constructively.
Then only the gift is complete. Section 152 envisages that
where the donor is in possession, a gift of immovable property
of which the donor is in actual possession is not complete
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unless the donor physically departs from the premises with all
his goods and chattels, and the donee formally enters into
possession. It would, thus, be clear that though gift by a
Mohammedan is not required to be in writing and consequently
need not be registered under the Registration Act; for a gift to
be complete, there should be a declaration of the gift by the
donor; acceptance of the gift, expressed or implied, by or on
behalf of the donee, and delivery of possession of the property,
the subject-matter of the gift by the donor to the donee. The
donee should take delivery of the possession of that property
either actually or constructively. On proof of these essential
conditions, the gift becomes complete and valid. In case of
immovable property in the possession of the donor, he should
completely divest himself physically of the subject of the gift."
12. In Shri Mukund Bhavan Trust's case (cited supra), Hon'ble Apex
Court observed as hereunder:
"In fact, there is no averment in the plaint to the effect that the
predecessors were not aware of the transactions. The limitation
period for setting aside the sale deed would start running from
the date of registration of the same and as per Article 59 of
the Limitation Act, 1963, after three years of the registration,
the Plaintiff is barred from seeking cancellation of the said
registered sale deed or the decree that was passed before 50
years and the consequential judgments. We have already
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referred to Section 3 of the Specific Relief Act, 1963. The
plaintiff, in our view, has miserably failed to ascertain the
existence of the fact by being diligent. The question as to when
a period of limitation would commence in respect of a
registered document is no longer res integra."
13. In Dahiben's case (cited supra), Hon'ble Apex Court has held as
under:
"The underlying object of Order VII Rule 11 (a) CPC is that if
in a suit, no cause of action is disclosed, or the suit is barred by
limitation under Rule 11 (d), the Court would not permit the
plaintiff to unnecessarily protract the proceedings in the suit. In
such a case, it would be necessary to put an end to the sham
litigation, so that further judicial time is not wasted".
14. Per contra, learned counsel for respondent No.1 and 2/plaintiffs
submitted that it is settled principle of law that while adjudicating an
application filed for rejection of plaint, the averments made in the plaint
and the documents, if any, filed along with plaint can only be considered,
and the averments in written statement and document(s), if any, filed
along with the written statement cannot be considered. However, in the
present case, the application filed by defendant No.1 is entirely based on
the contentions raised in the written statement and the documents filed
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along with the said written statement, which per se cannot be looked into
while adjudicating an application filed for rejection of plaint.
15. Learned counsel for respondent Nos.1 and 2 further submitted that
Hameed Khatoon was the pattadar of the suit schedule properties and
after her demise, defendant No.2 unlawfully tampered/manipulated the
revenue records, thereby deleting the name of Hameed Khatoon in the
revenue records from the years 1991-1992, and fraudulently got mutated
his name in place of late Hameed Khatoon, without following the due
process of law and further, with mala fide intention, he executed a sale
deed in favour of defendant No.1 in the year 2017.
15.1. Learned counsel for respondent Nos.1 and 2 further submitted
that the legal heirs of late Hameed Khatoon, i.e., the mother and aunts of
the plaintiffs, who are still alive, have, out of their own volition, orally
gifted their respective shares in the suit schedule properties to the
plaintiffs by way of an oral Hiba (gift) made in the presence of witnesses
on 20.03.2020, which was subsequently reduced into writing by way of a
Memorandum of Past Gift, therefore, the plaintiffs are legally entitled to
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pursue the present litigation in their personal capacity, including seeking
delivery of possession of the suit schedule properties.
15.2. Learned counsel further contended that the trial Court, on due
consideration of the contentions raised and the submissions made on
behalf of both parties, has rightly dismissed the application and no
grounds are made out to interfere with the well-reasoned impugned order
of the trial Court and therefore, the Revision Petition is liable to be
dismissed as the same is devoid of any merit.
Consideration:-
16. The principal contentions that were urged on behalf of defendant
No.1 for rejection of the plaint are three fold, firstly, there is no cause of
action for filing the suit, secondly, the suit is barred by limitation and
thirdly, proper Court fee is not paid.
17. As regards the first limb of contention, it is settled principle of law
that the averments made in the plaint and the documents, if any, filed
along with the plaint, should only be looked into/considered while
adjudicating the application filed under Order VII Rule 11 CPC, and the
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averments in the written statement and the documents, if any, filed along
with written statement cannot be considered.
18. As regards the contention of learned counsel for revision petitioner
that there is no of cause of action for fling the suit, it has to be seen that in
the plaint, under the heading 'Cause of action', it is mentioned as
hereunder:-
"(a) Schedule 'A' the cause of action seeking a
Declaration of the Sale Deed dated 10-5-2017 arose
when the plaintiff after a strenuous search for the
same located it and obtained a C.C. of the same on
19.09.2020 and continues till it is declared as null
and void so also a direction to the Tahsildar
Maheshwaram Mandal to amend the entries in the
pahanies dated 2019 to 2020 by deleting the name of
Defendant No.1, and amending the same by mutating
the name of the plaintiff therein, arose on
22-2-2020 when the plaintiff during the course of his
enquiries in the Tahsildars Office Maheshwaram
Mandal.
The cause of action seeking possession of the
'A' premises arose in the month of February 2020
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when the plaintiff found that the defendant No. I was
in possession of the schedule 'A' premises.
(b) The cause of action for the declaration of 'B'
schedule property as null and void arose In the
month of December 2019 when in his search to
unearth the invalid executions of sale deeds relating
to his ancestral estate the plaintiff came across the
sale deed dated 02-04-2013 and his search further
led to the illegal entries In the Pahanies dated 1993
1994, which upon them coming to light in around
February 2020 need to be cancelled by way of
appropriate proceedings, thereby the possession of
the premises consequently needs to be delivered, as
such the cause of action not only commences on
02-04-2013 which is the date of execution of the Sale
Deed but still continues.
(c) The Cause of Action of 'C' schedule property arose
on 09-07-2013 i.e., the date on which the Defendant
No. 3 and 4 executed a Regd Sale Deed dated 09-07-
2013 in favour of the Defendant No.1 and continues
till it being declared as null and void and
consequently the Tehsildar Maheshwaram Mandal
being issued directions to amend the Pahanies dated
2019-2020 pertaining to Nandupally Village as
depicted in the schedule 'C' the cause of action
commences from February 2020 which the illegal
nature of the entire came to light and continues till
appropriate direction are issued to the Tahsildar
Maheshwaram Mandal to carry out amendments and
possession of the premises handed over the present
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plaintiff.
(d) Cause of action for the 'D' schedule, property arose on
05-11-2014 when a Regd. Sale Deed dated 05-11-2014
was executed by the Defendant No. 4 in favour of
Defendant No. 1 and continues till it is declared as null
and void and appropriate proceedings seeking the
cancellation of the mutated names of the Defendant
No.1 are carried out in Pahanies dated 2019-2020 and
all future Pahanies, thus the cause of action continues
and also shall continue till possession of the premises
bearing schedule 'D' is handed over the plaintiff.
19. Thus, from the above, it is evident that the plaintiffs are not in
possession of the suit schedule properties. The plaintiffs under the heading
'Cause of action' have referred only to the transactions that have taken
place in the years 2017 and prior, i.e., 2013 and 2014, without referring to
the earlier transactions that have taken place in respect of the subject
property i.e., the sale deeds of the year 1967 and 1971. Interestingly, the
plaintiffs have sought declaration of sale deeds that have taken place in
the years 2013, 2014 and 2017 as null and void. Hence, it is explicit that
the cause of action shown in the suit is not comprehensive.
20. In the instant case, the plaintiffs are claiming rights over the suit
schedule properties by way of Hiba executed by three daughters of the
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original owner-Mohammad Gouse Ali Khan. In addition to that, though
three daughters of the original owner are claiming to have succeeded to
the suit schedule properties after the death of their mother-Hameed
Khatoon, in the year 1981, not even a scrap of paper or document is filed
either in the form of pahanies, mutation in revenue records, etc., wherein
their names were reflected as pattadars in respect of the suit schedule
properties from the year 1981 onwards. On the other hand, it is apt to note
that in the plaint, the plaintiffs have vaguely stated that defendant No.2,
without having any manner of right or title over the suit schedule
properties, has got the name of Hameed Khatoon deleted in the pahanies
and got interpolated his name. However, in the plaint, there is no whisper
as to why the daughters of Mohammad Gouse Ali Khan-the original
owner have not chosen to challenge the mutation proceedings issued in
favour of defendant No.2. It appears that they have kept silent without
agitating their rights before the revenue authorities for getting their names
mutated in the revenue records by deleting the name of defendant No.2
and thus, having remained as silent spectators, they allowed multiple
transactions to take place in respect of the suit schedule properties. In such
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backdrop of the facts and circumstances of the case, the predecessors-in-
title of the plaintiffs, who stepped into the shoes of their mother by way of
succession, have utterly failed to establish either their title or possession
over the suit schedule properties, thereby, entitling them to gift the same
to the plaintiffs. Thus, without the assertion of rights of the predecessors-
in-tile of the plaintiffs, the plaintiffs have no locus standi to seek the
reliefs of declaration of sale deeds said to have been executed in the years
2013 or 2014 or 2017 in respect of the suit schedule properties as null and
void. By not vindicating/asserting their rights by way of a proper
document, the plaintiffs have simply and in fact, vaguely stated that one
Osman Ali Khan, the son of the cultivator of the suit schedule properties
by name Chand Khan, has managed to palm off the said properties to
defendant No.2. Thus, all these facts go to show that the plaintiffs have
got the plaint cleverly drafted, thereby creating an illusion of cause of
action, which is impermissible in law and has to be curtailed at the
threshold.
21. The aforesaid view of this Court is fortified by the judgment of
the Hon'ble Supreme Court in I.T.C. Limited Vs. Debts Recovery
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Appellate Tribunal and others 4 , wherein it is held as follows:-
"The question is whether a real cause of action has been set
out in the plaint or something purely illusory has been stated
with a view to get out of Order VII Rule 11 C.P.C. Clever
drafting creating illusions of cause of action are not permitted
in law and a clear right to sue should be shown in the plaint".
22. This principle has been reiterated by a Division Bench of the
Hon'ble Supreme Court in Rajendra Bajoria and others Vs. Hemant
Kumar Jalan and others 5, wherein it is observed as hereunder:-
"Under Order VII Rule 11 CPC, the duty is cast upon the
Court to determine whether the plaint discloses a cause of
action by scrutinizing the averments in the plaint, read in
conjunction with the documents relied upon, or whether the suit
is barred by any law. This Court has held that the underlying
object of Order VII Rule 1 CPC is that when a plaint doesnot
disclose a cause of action, the Court would not permit the
plaintiff to unnecessarily protract the proceedings. It has been
held that in such a case, it will be necessary to put an end to the
sham litigation so that further judicial time is not wasted."
23. As regards the scope of Order VII Rule 11 CPC, the Hon'ble
4 (1998) 2 SCC 70
5 2022(12) SCC 641
LNA, J
Supreme Court in Madanuri Sri Rama Chandra Murthy vs. Syed Jalal 6,
observed as hereunder:-
"If clever drafting of the plaint has created the illusion of a
cause of action, the court will nip it in the bud at the earliest so
that bogus litigation will end at the earlier stage".
24. In the light of the above judgments of the Hon'ble Supreme Court
and in view of the foregoing discussion as to the existence of cause of
action, this Court, on scrutiny of the averments in the plaint read in
conjunction with the documents relied upon by the plaintiffs, holds that
the plaint does not disclose a cause of action for filing the present suit and
the plaintiffs have cleverly drafted the plaint creating the illusion of cause
of action and as such, as observed by the Hon'ble Supreme Court in
Madanuri Sri Rama Chandra Murthy's case (cited supra) and Rajendra
Bajoria's case (cited supra), the same has to be nipped in the bud stage
i.e., at threshold so that bogus and sham litigation ends at the earliest,
without unnecessarily protracting the proceedings, and further judicial
time is not wasted.
25. As regards the contention of learned counsel for revision
6(2017) 13 SCC 174
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petitioner that the suit is hopelessly barred by limitation and as such, the
same is not maintainable, it is settled law that the issue of limitation is a
mixed question of fact and law.
26. To adjudicate upon the issue as to whether the suit is barred by
limitation, as contended by learned counsel for revision petitioner/
defendant No.1, it is seemingly necessary to refer to the relevant
provisions of the Limitation Act and also the ratio decidendi laid down by
the Hon'ble Supreme Court in this regard.
27. It is relevant to note that plaintiffs are claiming that the suit
schedule properties were orally gifted to them on 20.03.2020 by Siraj
Khatoon, Rukhiya Khatoon, and Hafeez Khatoon, who are daughters to be
daughters of Hameed Khatoon.
28. As regards the validity of oral gift i.e., Hiba, the legal position is
well settled, which has been reiterated by the Hon'ble Supreme Court time
and again in a catena of decisions, that the three essentials of a gift under
Mohammadan Law, i.e., (i) declaration of the gift by the donor;
(ii) acceptance of the gift by the donee and (iii) delivery of possession,
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have to be complied with to make Oral gift (Hiba) valid. Though, the
Rules of Mohammadan Law do not mandate that Hiba has to be reduced
to writing, only on fulfilling of all the three aforesaid essentials, the Hiba
becomes complete and irrevocable.
29. In the present case, admittedly, plaintiffs are not in possession of
the suit schedule properties and further, in the suit, they sought the relief
of recovery of possession of the suit schedule properties, based on oral
gift (Hiba) purported to have given in their favour on 20.03.2020.
Therefore, one of the essentials of Hiba i.e., delivery of possession is not
complied with, thereby, the Hiba dated 20.03.2020 becomes invalid under
the Mohammadan law and consequently, no rights are transferred to
plaintiffs in respect of the suit schedule properties.
30. Now, the aspect as to whether the suit seeking the reliefs sought for
therein has been filed within the prescribed period of limitation, as
envisaged under the Limitation Act, 1963, has to be determined.
31. The Limitation Act, 1963, consolidates and amends the Indian
Limitation Act, 1908, with regard to limitation for filing of suits, appeals
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and applications, and for purposes connected therewith. The law of
limitation contains the procedural Rules and does not confer any
substantive right or defines any cause of action, but, simply prescribes that
the remedy can be exercised only up to a certain period and not beyond
that.
32. There is also another important principle under the Law of
Limitation, which is crystallized in the form of maxim that "when once
the time has begun to run, nothing stops it".
33. Section 2(j) of the Limitation Act defines the expression "period
of limitation" as the period of limitation prescribed for any suit, appeal or
application by the Schedule and 'prescribed period' means the period of
limitation computed in accordance with the provisions of the said Act.
34. Article-59 of the Schedule of the Limitation Act, 1963, prescribes
the period of limitation for filing a suit for cancellation of an instrument or
decree or for rescission of a contract, which reads as under:
Description of suit Period of Time from which
limitation period begins to run
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59. To cancel or set When the facts entitling the
aside an instrument or plaintiff to have the instrument
decree or for the Three years or decree cancelled or set
rescission of a contract. aside or the contract rescinded
first become known to him.
35. From the said Article-59, it is discernible that period of limitation
for filing a suit for cancellation or setting aside of an instrument or decree,
is three years from the date of knowledge of the said instrument.
36. Articles 64 and 65 of the Limitation Act, 1963, read as follows:
Description of suit
Period of Time from which period
limitation begins to run
64. For possession Twelve years When the date of
of immovable dispossession.
property based on
previous
possession and not
on title, when the
plaintiff while in
possession of the
property has been
dispossessed.
LNA, J
65. For possession Twelve years When the possession of the
of immovable defendant becomes adverse to
property or any the plaintiff
interest therein
based on title
37. From a plain reading of Article-64, it is clear that a suit for recovery
of possession, based on previous possession and not based on title, should
be filed within a period of 12 years from the date of dispossession.
38. Article 65 of the Limitation Act, 1963 corresponds to Article 142 of
the Limitation Act, 1908, which envisages that when possession is sought
for based on title, and where the possession of defendant is adverse to the
plaintiff, the limitation for filing the suit is twelve years from the date of
such adverse dispossession.
39. Adverting the aforesaid provisions of the Limitation Act to the
present case, it is to be seen that once the plaintiffs' claim over the suit
schedule properties based on Hiba is negatived, since the Hiba is invalid
in the eye of law, necessarily, the case of the plaintiffs fall back to claim
possession of the suit schedule properties either based on adverse
LNA, J
possession of the defendants or on previous possession.
40. As regards the aspect of possession of the suit schedule properties,
the plaintiffs in the plaint themselves stated that the aforesaid three
daughters of the original owner-Mohammed Gouse Ali Khan, subsequent
to their marriages, have moved out of Hyderabad and as, there was no
near relative or family member to look after the said properties, it has
fallen prey in the hands of land grabbers, who managed to get the name of
Hameed Khatoon deleted in the pahanies of the years 1971-72.
41. From the above, it is evident that the donors of the alleged Hiba,
i.e., three daughters of Mohammad Gouse Ali Khan were not in
possession of the suit schedule properties. Therefore, the question of the
plaintiffs seeking recovery of possession of the suit schedule properties
based on their previous possession does not arise. Even in the contra
position, if the plaintiffs seek possession of the suit schedule properties
based on their previous possession, the limitation for filing the suit as per
Article 64 of the Limitation Act is twelve years from the date of
dispossession. The plaintiffs except stating that the suit schedule
properties were encroached by the land grabbers, did not give the specific
LNA, J
date on which they were so dispossessed from the suit schedule properties.
In such an event, even under Article 64 of the Limitation Act, the suit
cannot be said to be filed within the period of limitation of twelve years
from the date of dispossession.
42. Furthermore, except making bald pleadings that the defendants
have illegally encroached the suit schedule properties and got their names
mutated in the revenue records, the plaintiffs failed to mention as to from
which date the alleged possession of the defendants have become adverse
to the plaintiffs. This Court cannot loss sight of the fact that in the plaint,
the plaintiffs averred that the name of Hameed Khatoon appeared in the
pahanies till the year 1971-72 and thereafter, her name was deleted and
the name of Osman Ali Khan, who is son of the protected tenant-Chand
Khan, has been interpolated in the revenue records. From the aforesaid
facts, it is clear that the possession of the defendants became adverse to
three daughters of the original owner since the years 1971-72, however, it
seems that they, after sleeping over their rights and having allowed
multiple transactions to take place in respect of the subject properties,
awoke after a long period of nearly five decades by filing the present suit
LNA, J
for recovery of possession. Hence, the suit filed by the plaintiffs, even
based on the title of their predecessors, cannot be said to be filed within
the limitation period of twelve years from date when the possession of the
defendants has become adverse to the plaintiffs. Therefore, the suit filed
by the plaintiffs is not within the period of limitation as prescribed under
Article 65 of the Limitation Act.
43. In view of observation and findings of this Court in the preceding
paras that the plaintiffs have created the illusion of cause of action, which
in fact does not exist, by clever drafting of the plaint and hence, the same
has to be curbed/curtailed by duly rejecting the plaint at the threshold, this
Court holds that the plaintiffs have failed to show that "right to sue"
accrued to them.
44. The Hon'ble Supreme Court in Shakti Bhog Food Industries Ltd.
vs. Central Bank of India 7, observed that the expression-"when the right
to sue accrues" used in Article 113 of the Limitation Act, 1963, is
markedly distinct from the expression used in other Articles in First
Division of the Schedule dealing with suits, which unambiguously refer to
7(2020) 17 SCC 260
LNA, J
the happening of a specified event. Whereas Article 113, being a residuary
clause, does not specify happening of a particular event, but merely refers
to the accrual of cause of action on the basis of which the right to sue
would accrue.
45. In the instant case, the genesis of cause of action arose after
execution of sale deed by Hameed Khatoon in the year 1967 in favour of
Osman Ali Khan and thereafter, execution of sale deed by the said Osman
Ali Khan in favour of defendant No.2 in 1971 and also when the name of
Hammed Khatoon was deleted from pahanies of the years 1971-72 and
the name of Osman Ali Khan was incorporated therein.
46. Thus, the right to sue by means of filing a suit arose after execution
of sale deed by Hameed Khatoon in the year 1967. The expression "when
the right to sue accrues" in Article 113 of the Limitation Act need not
always mean "when the right to sue first accrues". For the right to sue
to accrue, the right sought to be vindicated in the suit should have already
come into existence and there should be an infringement of it or at least a
serious threat to infringe the same.
LNA, J
47. In the instant case, as observed supra, when no valid title has been
passed to the plaintiffs from their predecessors-in-title, there is no
question of their having a right to sue stating their rights in respect of the
said properties are infringed or there is threat to the same.
48. Further, as regards the entitlement of the plaintiffs to seek
declaration of registered sale deeds as null and void, it is appropriate to
refer to the judgment of the Hon'ble Supreme Court in Uma Devi and
others versus Anand Kumar and others 8 , wherein it is observed as
hereunder:
"In the case at hand, partition took place way back in the
year 1968, which is evident from the revenue record entries.
The suit is filed in the year 2023, i.e. after a period of 55
years. Further, many of the family members had executed
registered sale deeds in the year 1978. These sale deeds have
been attached, and on perusal, it is observed that these were
in fact registered sale deeds. A registered document provides
a complete account of a transaction to any party interested in
the property".
49. The categorical observations made by the Hon'ble Apex Court in
8 (2025)5 SCC198
LNA, J
Raj Narain Sarain (dead) through Lrs. And others Versus Laxmi Devi
and others 9 case are extracted as hereunder:-
"As noticed above, the learned single judge of the Allahabad
High Court though elaborately laid down the requirement of
Order 7 Rule 11 and the true effect thereof, but in our view,
totally misread and misapplied the provision in the
contextual facts. No explanation whatsoever is available in
the plaint as to the situation under which the suit was filed
after about a long period of 40 years. The knowledge of the
deed of sale stands accepted by reason of the averments in
the plaint itself (vide para 9 of the plaint)."
50. The Hon'ble Supreme Court in Suraj Lamp Industries Pvt. Ltd.
Vs. State of Haryana &Anr 10 in observed as under:
"Registration of a document gives notice to the world that
such a document has been executed. Registration provides
safety and security to transactions relating to immovable
property, even if the document is lost or destroyed. It gives
publicity and public exposure to documents thereby
preventing forgeries and frauds in regard to transactions
and execution of documents. Registration provides
information to people who may deal with a property, as to
9 (2002) 10 SCC 501
10 (2012)1 SCC 656
LNA, J
the nature and extent of the rights which persons may have,
affecting that property.
51. The Hon'ble Apex Court in Khatri Hotels Private Limited &Anr.
Vs. Union of India &Anr 11 noted that while enacting Article 58 of the
Limitation Act, the legislature had designedly made a departure from the
language of Article 120 of the Limitation Act, 1908. The Court noted that
the word "first" has been used between the words "sue" and "accrued".
The Court said that the same would mean that if a suit is based on
multiple causes of action, the period of limitation would begin to run from
the date when the right to sue first accrued. In other words, the Court held
that successive violation of the right would not give rise to fresh cause and
the suit would be liable to be dismissed if it was beyond the period of
limitation counted from the day when the right to sue first accrued.
52. In this regard, the Hon'ble Supreme Court in DilbooVs. Dhanraji12
at para 5 of the judgment held as follows:
"...... Whenever a document is registered the date of registration
becomes the date of deemed knowledge. In other cases where a
11 (2011) 9 SCC 126
12AIR 2000 SC 3146
LNA, J
fact could be discovered by due diligence then deemed
knowledge would be attributed to the plaintiff because a party
cannot be allowed to extend the period of limitation by merely
claiming that he had no knowledge"
53. Applying the law laid down in the aforesaid judgments to the
instant case, it is to be noted that as the suit is based on multiple causes of
action, the period of limitation would begin to run from the date when the
right to sue first accrued. In other words, the successive violation of the
right would not give rise to fresh cause and the suit would be liable to be
dismissed if it was beyond the period of limitation counted from the day
when the right to sue first accrued, i.e., when the first sale deed was
executed in the year 1967 and the subsequent sale deed in the year 1971
and further, deletion of name of Hameed Khatoon from the pahanies of
the years 1971-72 and mutating the name of Osman Ali Khan, who is son
of the protected tenant by name Chand Khan, in revenue records of the
year 1973-74.
54. In this context, it is also relevant to refer to the judgments of the
Hon'ble Supreme Court in Uma Devi's case (cited supra) and in Suraj
Lamp Industries Pvt Ltd's case (cited supra), wherein it is observed that
LNA, J
registration provides complete information to the people who may deal
with a property as to the nature and extent of the rights which persons may
have, affecting that property. In the teeth of the said judgments, it is
evident that though there are registered sale deeds of the years 2013 and
2014 pertaining to the suit schedule properties, which are in the
knowledge of the plaintiffs and are staring at them, the reliefs seeking to
declare the said registered sale deeds as null and void, without
establishing their rights over the suit schedule properties and the
predecessors-in-title of the plaintiffs, having slept over the matter without
initiation of any legal proceedings against the mutation of name of Osman
Ali Khan right from the years 1972-73 in the pahanies, and after so many
decades, through the plaintiffs have ventured to file the present suit,
seeking to revive their rights and the same is wholly impermissible in law.
55. In add ition to the afore-mentioned reasons for holding that the suit
is not maintainable under law and hence, the plaint is liable to be rejected
at the threshold, the principle of doctrine of acquiescence also applies to
the instant case.
56. The Hon'ble Supreme Court in Chairman, State Bank of India &
LNA, J
Anr. v. M.J. James 13 , has elaborately discussed the doctrine of
acquiescence and observed as hereunder:
"39. ...... Doctrine of acquiescence is an equitable doctrine
which applies when a party having a right stands by and sees
dealing in a manner inconsistent with that right, while the act is
in progress and after the violation is completed, which conduct
reflects his assent or accord. He cannot afterwards complain.
In literal sense, the term acquiescence means silent assent,
tacit consent, concurrence, or acceptance, which denotes
conduct that is evidence of an intention of a party to abandon
an equitable right and also to denote conduct from which
another party will be justified in inferring such an intention.
Acquiescence can be either direct with full knowledge and
express approbation or indirect where a person having the
right to set aside the action stands by and sees another dealing
in a manner inconsistent with that right and in spite of the
infringement takes no action mirroring acceptance. However,
acquiescence will not apply if lapse of time is of no importance
or consequence." The position expounded as above certainly
request consideration with reference to the facts of this case. In
that regard we will have to consider whether there was
acquiescence on part of the respondent and if so, whether lapse
of time, if any, is of no importance or consequence, with
reference to the factual position, in view of the exposition
13 2021 Scc onLine1061
LNA, J
thereunder 'that acquiescence would not apply if lapse of time
is of no importance or consequence'.
57. The Doctrine of Acquiescence is quite distinct from delay.
Acquiescence virtually destroys the right of the person. Given the
aforesaid legal position, indirect acquiescence on the part of plaintiffs can
be inferred till the filing of the suit, and not for the period post filing of
the suit. Nevertheless, acquiescence being in the nature of estoppel bars
plaintiffs from claiming violation of the right of fair representation.
58. Interestingly, suit is filed for declaration and cancellation of sale
deed bearing document No.3806/2017 dated 10.05.2017 in respect of 'A'
schedule property, sale deed bearing documentNo.2037/2013 dated
02.04.2013 in respect of 'B' schedule property, sale deed bearing
documentNo.3147/2013 dated 09.07.2013 in respect of 'C' schedule
property, sale deed bearing document No. 47/2015 dated 05.11.2014 in
respect of 'D' schedule property and also for amendment of pahanies for
the year 2019-2020 while showing 'cause of action' as date of execution
of above sale deeds. The plaintiffs have not sought for declaration of sale
deeds bearing document No.1254/1967 dated 10.07.1967 and sale deed
LNA, J
bearing document No.113/1971 dated 03.03.1979 (sic 03.03.1971) which
are parent documents executed in favour of defendant No.1. Admittedly,
suit schedule property was alienated firstly in the year 1967 and
subsequently, in the year 1971 and those registered sale deeds are not
under challenge in the present suit, therefore, even if sale deed executed in
favour of defendant No.1 is declared as null and void, the parent
documents 1967 and 1971 still remain in operation. It appears that
plaintiffs did not seek for declaration of sale deeds of the year 1967 and
1971 as null and void only because of limitation.
59. It is pertinent to note that suit is filed in the year 2020, which
shows that in the interregnum period of more than five decades between
the years 1967 and 2020, the plaintiffs have allowed multiple transactions
to take place in respect of the suit schedule property, which remained
unchallenged, therefore, the doctrine of acquiescence squarely applies to
the present case since plaintiffs have sought to declare the sale deed
executed in favour of defendant No.1 as null and void, without seeking the
relief of declaration of earlier sale deeds which were executed in 1967 and
1979 as null and void. This aspect shows the conduct of the plaintiffs, and
LNA, J
that apart, for the foregoing reasons, this Court holds that the suit filed by
plaintiffs is misconceived and is clearly barred by limitation and the
plaintiffs, having slept over the matter for decades together and further,
having allowed multiple transactions to take place, are not entitled to
approach the Court and seek the reliefs sought for in the suit.
60. Perusal of impugned order would disclose that the trial Court
except observing that the issue of limitation is a mixed question of law
and fact and that the said issue can be decided only after full-fledged trial,
failed to assign any proper reason for dismissing the application filed by
defendant No.1 seeking to reject the plaint.
61. Further, in view of the foregoing reasons, discussion and the
findings recorded in the preceding paras, by duly following the
ratio/principle laid down by the Hon'ble Supreme Court in the judgments,
which are cited supra, this Court holds that the trial Court failed to
scrutinize the averments in the plaint in conjunction with the documents
relied upon by the plaintiffs in a right perspective in order to determine as
to whether the plaint discloses cause of action and whether the suit is filed
within limitation or barred by limitation. The trial Court has grossly
LNA, J
misdirected itself in holding that the ratio laid down by the Hon'ble
Supreme Court in Dahiben Vs. Arvindbhai Rai Yantji Bhansulai (Gajra)
(dead) through LRs and others 14 is not applicable to the instant case.
Furthermore, a perusal of impugned order shows that the trial Court has
failed to advert to the provisions of the Limitation Act vis-a-vis the factual
matrix of the case as put forth by the plaintiffs in the plaint and grossly
erred in holding that the suit is filed within the period of limitation.
62. As regards the disclosure of cause of action in the plaint, this Court,
in the preceding paras has elaborately discussed the said issue and after
analyzing the same and following the ratio decidendi of the Hon'ble
Supreme Court in the judgments cited supra, held that plaint does not
disclose cause of action and therefore, the sham and bogus litigation shall
not be allowed to continue and an end shall be put to it. Hence, this Court
holds that the trial Court failed to properly appreciate the facts of the case
and committed error in holding that the plaintiffs have shown the cause of
action to bring the suit within the limitation.
14 (2020) 7 SCC 366
LNA, J
63. In view of the above discussion and the factual matrix of the case,
this Court is of the considered opinion that mere clever drafting of the
plaint creating an illusion of cause of action, which in fact does not exist
does not revive the stale claim of the plaintiffs and further, as the suit is
clearly barred by limitation, as held supra, the plaintiffs are not entitled to
seek the reliefs sought for in the suit and the same is liable to be rejected
in limine.
64. Resultantly, this Revision Petition is allowed, setting aside the
order dated 23.11.2022 passed in I.A.No.429 of 2021 in OS.No.202 of
2022 on the file of the Principal Senior Civil Judge, Ibrahimpatnam,
Ranga Reddy District and consequently, I.A.No.429 of 2021 stands
allowed.
65. Miscellaneous petitions pending, if any, shall stand closed. No
costs.
__________________________________
LAXMI NARAYANA ALISHETTY, J
Date:17.09.2025
Note:
LR copy to be marked.
B/o (dr)
