Gujarat High Court
Patel Sureshbhai Kanjibhai vs Yasminabanu Abdul Rahim W/O Abdul Rajak on 13 April, 2026
NEUTRAL CITATION
C/CRA/52/2021 CAV JUDGMENT DATED: 13/04/2026
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Reserved On : 24/02/2026
Pronounced On : 13/04/2026
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CIVIL REVISION APPLICATION NO. 52 of 2021
With
R/CIVIL REVISION APPLICATION NO. 55 of 2021
With
R/CIVIL REVISION APPLICATION NO. 177 of 2023
With
R/CIVIL REVISION APPLICATION NO. 180 of 2023
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE J. C. DOSHI
==========================================================
Approved for Reporting Yes No
Yes
==========================================================
PATEL SURESHBHAI KANJIBHAI & ORS.
Versus
YASMINABANU ABDUL RAHIM W/O ABDUL RAJAK & ORS.
==========================================================
Appearance:
MR K B VIRVADIYA(11272) for the Applicant(s) No. 1
MR SHALIN MEHTA, SR. COUNSEL WITH MR. NISHIT P GANDHI(6946) for
the Applicant(s) No. 1,2,3,4,5
MS. KRUTI M SHAH(2428) for the Opponent(s) No. 1,2,3,4,5,6,7,8,9
==========================================================
CORAM:HONOURABLE MR. JUSTICE J. C. DOSHI
CAV JUDGMENT
Rule. Learned advocate Ms.Shah appearing for the
respondent waives service of rule.
1. I propose to decide captioned Revision Applications by
common judgment, as facts and issue involved in the Revision
Applications are analogous.
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2. All the Revision Applications are filed under section 115 of
the Code of Civil Procedure, 1908 (for short ‘CPC‘) against
judgment and decree passed by the learned Trial Court rejecting
application filed under Order 7 Rule 11 of the CPC to reject the
plaint in respective suits.
3. In Civil Revision Application No.52 of 2021, subject matter
is rejection of application at Exh.22 in Regular Civil Suit No.112
of 2016.
4. In Civil Revision Application No.55 of 2021, subject matter
is rejection of application at Exh.14 in Regular Civil Suit No.110
of 2016.
5. In Civil Revision Application No.177 of 2023, subject
matter is rejection of application at Exh.22 in Regular Civil Suit
No.105 of 2016.
6. In Civil Revision Application No.180 of 2021, subject
matter is rejection of application at Exh.10 in Regular Civil Suit
No.111 of 2016.
7. With the consent and upon request of learned advocates
for the parties, Civil Revision Application No.52 of 2021 is
considered as lead matter. Facts are taken from Civil Revision
Application No.52 of 2021 which essentially challenge order
passed below Exh.22 in Regular civil Suit No.112 of 2016,
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thereby facts of the case are taken from the pleading of Regular
Civil Suit No.112 of 2016.
8. For convenience, the parties are referred as per their
original status before the learned Trial Court.
9. Plaintiff – Yasminabanu and others filed Civil Suit for
declaration, permanent injunction and partition against
defendants mainly claiming relief to set aside and declare that
mortgage deed dated 14.03.1969, consequent sale deed dated
04.12.1975, sale deed dated 14.06.2000, sale deed dated
30.10.2007, sale deed dated 29.02.2008, sale deed dated
12.03.2012 and sale deed dated 01.08.2015 executed by the
defendants in favour of other defendants are not binding to the
plaintiff as those were executed without consent of the plaintiff
and defendant no.23/1, who are having share in the suit
property. The plaintiffs further prayed to declare that the said
sale deeds do not extinguish or affect the rights of the plaintiffs
in the suit land. Second relief claimed by the plaintiff is that the
suit property be partitioned amongst the legal heirs in
accordance with the provisions of Mohammedan Law, by metes
and bounds, and peaceful and vacant possession of the share
falling to the plaintiffs and defendant No.23/1 be handed over to
them. Thirdly, plaintiff prayed for perceptual injunction
restraining defendants, their servants and agents from entering
into possession of plaintiff’s share in the suit land, particulars of
which are stated in para 5 of the plaint.
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10. Aforesaid reliefs are claimed by the plaintiff on the basis of
averments that plaintiffs are Sunni Muslim and governed by
Shariat Act. Plaintiffs claim that they are heirs of Shaikh
Mohammad Jamalbhai, who was original owner of the suit
property. It is stated that Shaikh Mohammad Jamalbhai was
survived by his wife Ajubibi, who died in the year 1958; son
Jamalbhai who died on 17.06.1973 and daughter Gulabibi who
died on 15.06.1994. The plaintiffs claim that they are direct
descendant of deceased Gulabibi daughter of Shaikh Mohammad
Jamalbhai. According to plaintiff, Gulabibi was survived by her
daughters viz. Subanbibi, who died on 16.07.2008, Rehamatbibi
who died on 14.06.1996 and Mariyambibi who died on
31.08.2013. Plaintiff – Yasminabanu daughter of Mariyambibi
along with her brothers has filed aforesaid suit. Husband of
Mariyambibi expired on 17.09.1986. According to plaintiff,
deceased Shaikh Mohammad Jamalbhai was owner and
occupier of agricultural land of revenue survey no.70, 71,49,48
and 43 in the outskirts of Patan City precisely in village
Sandesrapati (for short ‘suit land’). Promulgation entry No.74
was mutated in revenue record. Since mutation entry of revenue
survey no.43 was left out, in said promulgation entry, another
revenue entry was mutated vide Revenue Entry No.689 and
thereby land of survey no.43 was added in the parcel of land.
11. Plaintiff further claims that since Shaikh Mohammed
Jamalbhai was survived by wife Ajubibi, his son Jamalbhai and
daughter Gulabibi, revenue authorities were bound to mutate
revenue entry of all lineal descendant in revenue record of suit
land but some error took place and thus name of Gulabibi was
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not mutated. Plaintiff claims here right through Mariambibi
daughter of Gulabibi i.e. grand mother of the plaintiff. Plaintiff
pleaded that Mariambibi expired on 31.08.2013 and thereafter,
plaintiff came to know that their names are not mutated in
revenue record. Plaintiff through her power of attorney
questioned revenue entry no.74 and No.689 but Mamlatdar,
Patan declined to mutate their names and directed plaintiff to
obtain necessary orders from learned Civil Court.
12. In the aforesaid factual background, plaintiff questions
mortgage deed executed by Jamalbhai on 14.03.1969 and then
sale deed of suit land on 04.12.1975 executed by Sakinabi (wife
of Jamalbhai) and claimed that since suit land were ancestral
properties, co-sharer has no whatsoever right to execute sale
deed qua share of plaintiff’s grand mother and consequently, her
mother and that of plaintiff.
13. Some off-shot pleadings are that plaintiff had filed Regular
Civil Suit No.136 of 2015 against defendant no.23/1 viz.
Aminabibi questioning posting of revenue entry of suit land. In
the said suit, both of them have compromised the dispute and
decree was passed in Lok Adalat but said decree has been
challenged by way of Special Civil Application No.9124 of 2016
by defendant. Plaintiff since has been served with notice of
Special Civil Application, she came to know about various
transaction took place in suit land behind her back, adversely
affecting plaintiff’s share in joint property. The plaintiff narrating
the same as cause of action, instituted aforesaid suit.
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14. In nutshell,the plaintiff claims relief that suit land belongs
to Mohammad Jamalbhai and grand-mother of the plaintiff;
plaintiff being grand-daughter of Gulabibi sister of Jamalbhai is
entitle to claim right in the suit land on the basis that suit land
is ancestral property and plaintiff’s undivided share contain
therein.
15. In the aforesaid suit, defendant since, served came out
with application under Order 7 Rule 11 of CPC to reject plaint.
Application having been hotly contested by plaintiff came to be
partly allowed by learned Trial Court directing the plaintiff to
declare market value of suit land and their share on affidavit,
however, learned Trial Court declined relief of rejection of plaint.
Hence, being aggrieved, the original defendants have preferred
present Revision Applications.
16. In the aforesaid factual aspects, I have heard learned
Senior Counsel Mr.Shalin Mehta along with learned advocate Mr.
Nishit Gandhi for applicants – original defendants and learned
advocate Ms.Kruti Shah for respondents – original plaintiff. Both
of them have filed written arguments, which are taken on record.
16.1. Besides, learned Counsel for both sides argued orally.
17. Learned Senior Counsel Mr.Shalin Mehta submitted that
learned Court below committed serious error in not rejecting
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plaint which is hopelessly time barred. It is submitted that
principle of ancestral property is completely foreign and alien to
Muslim law. It is further submitted that under Muslim law,
neither the right by birth nor the concept of ancestral property is
recognized. Learned Senior counsel Mr.Mehta referred to the
copy of the plaint and submitted that at least at five different
places, the plaintiff has mentioned suit land as ancestral
property. Therefore, the very foundation of the suit is erroneous
and the plaint deserves to be rejected, however, the learned Trial
Court committed an error in not rejecting the plaint.
17.1. It was further submitted that the plaintiff – Yasminabanu
and her brothers – are claiming their rights through Gulabibi,
who expired in the year 1994. It is submitted during her lifetime,
neither Gulabibi nor her daughter Mariambibi claimed their
share in the suit land. It was submitted that the heirs of the
deceased Gulabibi never came forward to claim that they were
not given their share. It is submitted that plaintiff filed suit
through power of attorney and claimed share where sale deed of
suit land were executed firstly in form of mortgage deed on
14.03.1969; sale deed on 04.12.1975; sale deed on 19.06.2000;
sale deed on 30.10.2007; sale deed on 29.02.2008; sale deed on
12.03.2012 and sale deed on 01.08.2015 in favour of
defendants. It is submitted that revenue entry were also
mutated in favour of respective defendants without any
hindrance. It was submitted that only after the price of the suit
land escalated, the plaintiff filed the present suit for partition on
a flimsy cause of action to disturb the title of the defendants. It
was further submitted that the first revenue entry was mutated
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in the year 1952 and it was known to all including the ancestors
of the plaintiff, that the revenue entry was not recorded in the
name of Gulabibi but only in the name of Mohammad
Jamalbhai. It is submitted that Gulabibi or her heirs have never
questioned promulgation entry no.74 at any point of time or
others but the plaintiff. It is submitted that suit is nothing but
to blackmail tactic adopted by the plaintiff to exert pressure on
defendants and to grab money.
17.2. Learned Senior Counsel Mr. Mehta relied on judgment of
this Court in case of Yusufbhai Walibhai Patel v/s. Zubedaben
Abbasbhai Patel [Civil Revision Application No.48 of 2023
with Appeal from Order No. 41 of 2024] dated 10.02.2026
and submitted that this Court has thoroughly examined and
held that concept of ancestral property does not apply to
Mohammedan law. It is submitted that Mohammedan Law does
not have concept of joint or undivided family, coparcener etc.,
even if father and his son living together do not constitute joint
family, in Muslim law father is master of his property and on
death of master, succession would open. It is submitted that in
the present case, succession was open on death of master –
Mohammad Jamalbhai in the year 1952. Revenue entry No.74
was mutated and correction entry no.697 took place atleast more
than 50 years back within open knowledge of the parties. It is
submitted that Gulabibi or her daughter did not question about
their share at any point of time, rather accepted the same,
therefore, plaintiff has no right to say that sale deed which were
executed in the year 1969 till 2015 are not binding to her.
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17.3. Learned Senior Counsel Mr. Mehta relied on another
judgment in the case of Fatima d/o. Rasulbhai Kajubhai v/s.
Mirza Akbarbhai Rasulbhai [2018 (0) AIJEL – HC- 239474] to
submit that in identical fact situation where daughter claimed
right in property of her father claiming it to be ancestral
property, this Court believed that claim of plaintiff is barred by
law of limitation.
17.4. Learned Senior counsel Mr.Mehta also relied on following
authorities :-
(i) Prajapati Kodarbhai Kachrabhai v/s. Aanjana
Valabhai Manabhai since died through Lhrs. [2024 (0)
GUJHC 31542]
(ii) Shri Mukund Bhavan Trust and Ors. v/s. Shrimant
Chhatrapati Udayan Raje Pratapsinh Maharaj Bhonsle
[2024 SCC Online 3844].
(iii) Uma Devi v/s. Anand Kumar [(2025) 5 SCC 198].
(iv) Santosh Devi v/s. Sunder [2025 INSC 627].
(v) Abedaben Isabbai Kureshi v/s. Ismailbhai Alibhai
Kureshi [2025 (0) JX (Guj) 825.
(vi) Laxmiben Mafatlal Patel v/s. Jayantibhai Mafatlal
Patel [2018 (0) AIJEL HC 242910]
(vii) Kalidas Vitthalbhai Mali v/s. Rashmikant Pannalal
Patel [2025 (0) AIJEL HC 250648].
17.5. In premise of aforesaid arguments, learned Senior Counsel
Mr.Mehta submitted to allow Revision Applications by quashing
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and setting aside impugned order and to allow applications filed
to reject the plaint and consequently, to reject the plaint.
18. Per contra, learned advocate Ms. Kruti Shah appearing for
the respondents – original plaintiff, by way of written
submissions running into 32 pages, mainly contended that as
per Mohammedan Law, upon the death of Mohammad
Jamalbhai, his son Jamalbhai and daughter Gulabibi inherited
specific shares in the property, i.e. the son inherited two-thirds
share whereas the daughter inherited one-third share. It was
submitted that the pedigree of Jamalbhai, who expired in the
year 1973, has remained undisputed. The property left by
Jamalbhai includes the share of Gulabibi and her daughter, and
since such share exists, the plaintiff, being one of the heirs of
Gulabibi, is entitled to claim a share in the suit land. It was
further submitted that unless the defendants prove specific date
from which the plaintiff was ousted or her rights were denied,
the period of limitation for filing the suit would not expire.
Therefore, the contention raised by the defendants that the suit
is barred by the law of limitation is wholly baseless. It is
submitted where a sale deed of joint property is executed without
the consent of a co-sharer, the purchaser cannot acquire a
better title. It was further submitted that under Mohammedan
Law, once a vested interest in a specific share accrues upon the
death of Mohammad Jamalbhai, the heirs become entitled to
their respective shares in the immovable property even in
absence of administration of the property. It is submitted that
such share cannot be denied merely on the basis of an
erroneous mutation entry. In fact, the specific share devolves
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upon the heirs and the shares are required to be determined
upon each death. In support of her submission, learned advocate
Ms.Shah has relied on judgment in the case of Syedshah Gulam
Ghouse Mohiuddin v/s. Syedshah Ahmed Mohiuddin
Kasmisul Quadari [1971 AIR SC 2184]. It is further submitted
that cause of action for partition of joint property is said to be
perpetually recurring one and would not be barred by principle
of limitation unless it is proved that share is divided or partition
took place between co-sharer. In nutshell, learned advocate
Ms.Shah submits that on death of Mohammedan, his estate
shall devolve upon his heirs, in specific share which itself shows
that partition would take place on each death. Learned advocate
Ms.Shah also relied on judgment in the case of Gafurbhai
Chhotabhi Mainyar v/s. Sugarabai Fakirmohammad [1995 (2)
MH.L.J. 703]. Learned advocate Ms. Shah to explain inheritance
governed under Mohammedan Law relied on judgment in the
case of Mansoor Saheb (Dead) v/s. Salim (D) by Lrs. [2024
Law Suit (SC) 1183].
18.1. It is also argued by learned advocate Ms.Shah that Patan
District was under governance of Gaikwad State till 31.07.1949.
It is submitted that Gaikwad State merged in State of Bombay
on 01.08.1949, promulgation of revenue record took place in the
year 1952 and as per rule the revenue authorities concerned had
visited village and residents were called in public meeting and
oral request was made to mutate name of land owners which
indicates that promulgation entry would not decide Gulabibi’s
right, title and interest derived on death of Mohammad
Jamalbhai. It is submitted that revenue entry are only for fiscal
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purpose to collect land revenue. It is submitted that since
revenue entry are not creating any title but the learned Civil
Court, plaintiff had filed Regular Civil Suit No.136 of 2015 as
well as Regular Civil Suit No.112 of 2016 questioning legality
and validity of the mortgage deed, thereafter execution of sale
deed from the year 1975 to 2015. It is submitted that sale deeds
are fraud and executed deliberately to exclude inherited rights of
co-sharer i.e. Aminabi, daughter of Jamalbhai and therefore,
there is no time limit to challenge said fraudulent transaction.
18.2. It is submitted by learned advocate Ms.Shah that RTS Case
No.184 of 2015 was conducted between co-sharer Aminabi
daughter of Jamalbhai and predecessors of the applicants,
before Deputy Collector, whereby later on settlement deed dated
29.12.2014 was executed to confirm sale which was executed on
04.12.1975 which itself suggest that plaintiff’s share exist in the
said property and thus, plaintiff is entitled to claim such share.
Reliance is placed on judgment in the case of Dharamsingh v/s.
Premsigh [(2019) 3 SCC 530]; Badrinarayan Singh v/s.
Bageshwari Prasad Dubey [1951 AIR (Pat) 274] and Kantibhai
Ishvarbhai Patel v/s. Chandrakant Ishvarbhai Patel [2005 (3)
GLR 211] to contend that if no dispute raised against revenue
entry, it will not adversely affect the right of the plaintiff to
challenge the said mutation entry at subsequent stage. It is also
submitted that merely plaintiff has not challenged mutation
entry on the ground of execution of sale deed, it would not debar
from filing suit for partition.
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18.3. It is submitted by learned advocate Ms.Shah that
Shakinabi cannot bequeath more than her share i.e. 1/8th share
in the suit property, being tenant in common and she could not
confer better title than what she herself has. This argument has
been made taking clue from judgment in the case of
Tikamchand Lunia v/s. Rahimkhan Ishakkhan [1971 AIR
(MP) 23]; Umadevi Nambiar v/s. Thamaraseeri Roman
Catholic Diocese [2022 (AIR) (SC 1640]; P. Kishorekumar
v/.s Vittal Patkar [2023 Law Suit (SC) 1123]. It is further
submitted that revisionists after 39 years, in the year 2014
realized the fact that title is not perfected through sale deed
executed in the year 1975. It is submitted that therefore, in RTS
proceedings initiated by Aminabi, the applicants herein have
confirmed sale deed which took place in the year 1975, which
demonstrate that plaintiff has share in suit land.
18.4. Mainly upon above submissions, learned advocate
Ms.Shah submitted to dismiss Revision Application by
confirming judgment and order.
18.5. Some other judgments are also relied by learned advocate
Ms.Shah. Firstly judgment of Hon’ble Apex Court in the case of
Suhrid Singh @ Sardool Singh v/s. Randhir Singh [2010 Live
Law (SC) 104] to submit that if sale deed is executed without
consent of coparcener, there is no necessity to challenge legality
of such sale deed. Another judgment is also relied upon in the
case of S.K.Golam Lalchand v/s. Nandulal @ Nandu Lal
Bayers [2024 Law Suit (SC) 801].
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18.6. So far as submission that partition is a recurring cause of
action, learned advocate Ms.Shah has relied upon judgment in
the case of Srinivas and Ors. v/s. M.C.Narayanswamy and
Ors. [2024 Lawsuit (Kar.) 506]; Tara Kishore Das v/s.
Beharu Barman and Ors. [1956 Law Suit (Gau) 58].
18.7. Argument of approbate and reprobate is also made by
learned advocate Ms.Shah relying on the judgment in the case of
Their Workmen Through Joint Secretary (Welfare), Food
Corporation of India Executive Staff Union v/s. Employer in
Relation to Management of Food Corporation of India [2023
Law Suit (SC) 638].
18.8. Following judgments are also relied by learned advocate
Ms. Shah.
(i) Md. Mohammad All v/s. Sri Jagdish Kalita [2003 Law
Suit (SC) 970].
(ii) P. Kumarakurubaran v/s. P. Narayanan [2025 Law
Suit (SC) 628].
(iii) Abdul Vahed v/s. Mohan Bashi sAha [1929 Law Suit
(Cal) 149.
(iv) Baini Prasad (D) Thr. Lrs. v/s. Durga Devi [2023
Lawsuit (SC) 88].
18.9. On the principle of governing Order VII Rule 11 of Code of
Civil Procedure, learned advocate Ms.Shah relied on judgment in
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the case of Karam Singh v/s. Amarjit Singh [2025 Lawsuit
(SC) 1380]; G.Nagaraj v/s. B.P.Mruthunjayanna [2023 Livelaw
(SC) 311]; Prem Kishore v/s. Brahm Prakash [2023 Livesuit
(SC) 322]; Shrihari Hanumandas Totala v/s. Hemant Vithal
Kamat [2021 Law Suit (SC) 408] and Civil Revision
Application No.48 of 2023 of Gujarat High Court [Yusufbhai
Walibhai Patel v/s. Zubedaben Abbasbhai Patel].
18.10. It is thus submitted that several disputed questions
are involved in the matter which requires trial. Hence, plaint
deserves no rejection at threshold.
18.11. Upon above arguments, it is submitted by learned
advocate Ms.Shah to dismiss the Revision Applications.
19. At the outset, having heard learned advocates for both the
sides, certain undisputed facts required to be noted are as under
:-
19.1. The plaintiff has filed suit for partition, permanent
injunction and declaration. There is vast difference between suit
for partition and suit for administration. The plaintiff filed suit
through Power of Attorney. None of the plaintiffs, though
residing in City of Patan, came forward to file suit. Previously,
the plaintiff filed Regular Civil Suit No.136 of 2015 against
defendant no.23/1. In the present suit, plaintiff and defendant
no.23/1 are hand in glove and claiming relief. Regular Civil Suit
No.136 of 2015 was decreed on compromise living behind other
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No.9124 of 2016 was filed by the defendants of the suit,
whereby, this Court stayed implementation and operation of
compromise decree. When Regular Civil Suit No.136 of 2015 was
filed, revenue entry of suit land was not standing in the name of
plaintiff or defendant nos.23/1, yet they have filed compromise
purshis before the learned Civil Court. At that time, only revenue
entry no.74 and 689 were placed before the learned Civil Court.
The plaintiff though was well aware of revenue entry, did not
produce the same in earlier suit or in the suit which includes
names of the defendants.
19.2. Suit land was owned by deceased Shaikh Mohammadbhai
Jamalbhai who died in the year 1952. He was survived by son
Mahammadbhai Jamalbhai and daughter Gulabibi. On death of
Shaikh Mohammadbhai Jamalbhai, suit land was mutated in
name of his son i.e. Jamalbhai Mohammadbhai. Gulabibi real
daughter did not object to mutation of name of Jamalbhai as
sole owner of the suit land. Son Jamalbhai Mohammadbhai died
in the year 1973. On his death, revenue entry of the suit land
was mutated in favour of his wife Sakinabi and daughter
Aminabi, at that time also Gulabibi did not object. In life time of
Gulabibi, mortgage deed was executed in the year 1969. Again,
at that time, she did not object. Sale deed was executed in the
year 1971, again Gulabibi did not object. Gulabibi died on
15.06.1994. In her lifetime, deceased Gulabibi did not object any
of the transaction qua suit land carried out either by deceased
Mohmadbhai Jamalbhai or his wife Sakinabi. Alike neither
husband of Gulabibi, nor her three daughters objected
transaction / transfer of property. Suit land admittedly changed
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hands firstly on 14.03.1969 by registered mortgage deed, then
by registered sale deed dated 04.12.1975, sale deed dated
19.06.2000, sale deed dated 30.10.2007, sale deed dated
12.03.2012 and sale deed dated 01.08.2015 followed by
successful posting of mutation of revenue entry in favour of third
party. At the time of filing suit, besides defendants, interest of
third parties are created.
20. In premise of aforesaid aspects, firstly let refer Order 7
Rule 11 of CPC. It reads as under :-
“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 returned upon 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 provisions of
rule
[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 from 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.]”
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21. Order VII Rule 11 of the C.P.C. casts a duty upon the
Court to reject the plaint if the circumstances indicates therein
are found to be existing. It cannot be the law that this power of
the Court would be curtailed in any manner even if the Court
proceeds with the suit to some length, without application of
mind, on this point. In fact the word ‘shall’ used in Order 7 Rule
11 of CPC makes it mandatory upon the Court to examine that
whether statement made in the plaint are hit by any provision of
law or cause of action at first blush is found to be genuine. The
rule itself does not indicate anywhere that the power is to be
exercised upon an application or, if such an application is filed,
it should be at a particular stage. Any action under Order VII
Rule 11 of the C.P.C. does not await an application by any party.
It is the duty of the Court to reject the plaint if reasons, are
found to be existing from a reading of the plaint itself and other
documents relied upon by the plaintiff and annexed with the
plaint. Scope and ambit of Order 7 Rule 11 of CPC is considered
by the Hon’ble Apex Court in the case of Sopan Sukhdeo Sable
vs. Asstt. Charity Commissioner, (2004) 3 SCC 137, wherein,
the Hon’ble Apex Court held as under :-
“10. In Saleem Bhai v. State of Maharashtra ((2003) 1 SCC
557) : (AIR 2003 SC 759) it was held with reference to Order
7 Rule 11 of the Code that the relevant facts which need to
be looked into for deciding an application thereunder are the
averments in the plaint. The trial court can exercise the
power at any stage of the suit before registering the plaint or
after issuing summons to the defendant at any time before
the conclusion of the trial. For the purposes of deciding an
application under clauses (a) and (d) of Order 7 Rule 11 of
the Code, the averments in the plaint are germane: the pleas
taken by the defendant in the written statement would be
wholly irrelevant at that stage.”
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22. Above judgment in case of Sopan Sukhdeo Sable (supra)
has been referred by Hon’ble Apex Court in the case of Popat
and Kotecha Property v/s. State Bank of India Staff
Association [(2005) 7 SCC 510]. In the said judgment, Hon’ble
Apex Court has held that real object of Order VII, Rule 11 of the
Code is to keep out of courts irresponsible suits. Therefore,
Order 10 of the Code is a tool in the hands of the courts by
resorting to which and by searching examination of the party in
case the Court is prima facie of the view that the suit is an abuse
of the process of the court in the sense that it is a bogus and
irresponsible litigation, the jurisdiction under Order 7, Rule 11
of the Code can be exercised.
23. In the case of Balasaria Construction (P) Ltd. v.
Hanuman Seva Trust, (2006) 5 SCC 658, the Hon’ble Apex
Court has considered the question whether words “…. barred by
law….” in Rule 11(d) would also include bar by the law of
limitation. Hon’ble Apex Court after referring various judgments
and conflict of views, held as under:
“4. This case was argued at length on 30.8.2005. Counsel
appearing for the appellant had relied upon a judgment of
this Court in N.V. Srinivasa Murthy v. Mariyamma (2005) 5
SCC 548 : (AIR 2005 SC 2897) for the proposition that a
plaint could be rejected if the suit is ex facie barred by
limitation. As against this, counsel for the respondents relied
upon a later judgment of this Court in Popat and Kotecha
Property v. SBI Staff Assn.(2005) 7 SCC 510. in respect of
the proposition that Order 7, Rule 11(d) was not applicable
in a case where a question has to be decided on the basis of
fact that the suit was barred by limitation. The point as toPage 19 of 60
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whether the words barred by law occurring in Order 7 Rule
11(d) CPC would include the suit being barred by limitation
was not specifically dealt with in either of these two
judgments, cited above. But this point has been specifically
dealt with by the different High Courts in Mohan Lal
Sukhadia University v. Priya Soloman AIR 1999 Raj 102,
Khaja Quthubullah v. Govt. of A.P. AIR 1995 AP 43,
Vedapalli Suryanarayana v. Poosarla Venkata Sanker
Suryanarayana (1980) 1 An LT 488 : (1980) 1 APLJ 173
(HC), Arjan Singh v. Union of India AIR 1987 Del 165,
wherein it has been held that the plaint under Order 7 Rule
11(d) cannot be rejected on the ground that it is barred by
limitation. According to these judgments the suit has to be
barred by a provision of law to come within the meaning of
Order 7 Rule 11 CPC. A contrary view has been taken in
Jugolinija Rajia Jugoslavija v. Fab Leathers Ltd. AIR 1985
Cal 193, National Insurance Co. Ltd. v. Navrom Constantza
AIR 1988 Cal 155, J. Patel and Co. v. National Federation of
Industrial Co.op.Ltd. AIR 1996 Cal 25 and State Bank of
India Staff Assn. v. Popat and Kotecha Property (2001) 2 Cal
LT 34. The last judgment was the subjectmatter of challenge
in Popat and Kotecha Property v. SBI Staff Assn.(2005) 7
SCC 510. This Court set aside the judgment and held in
para 25 as under: (SCC P.517)“25. When the averments in the plaint are considered in the
background of the principles set out in Sopan Sukhdeo case
(2004) 3 SCC 137 : (AIR 2004 SC 1801) the inevitable
conclusion is that the Division Bench was not right in holding
that Order 7, Rule 11, CPC was applicable to the facts of the
case. Diverse claims were made and the Division Bench was
wrong in proceeding with the assumption that only the
nonexecution of lease deed was the basic issue. Even if it is
accepted that the other claims were relatable to it they have
independent existence. Whether the collection of amounts by
the respondent was for a period beyond 51 years needs
evidence to be adduced. It is not a case where the suit from
statement in the plaint can be said to be barred by law. The
statement in the plaint without addition or subtraction must
show that it is barred by any law to attract application of
Order 7 Rule 11. This is not so in the present case.”
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5. Noticing the conflict between the various High Courts and
the apparent conflict of opinion expressed by this Court in
N.V. Srinivasa Murthy v. Mariyamma (2005) 5 SCC 548 :
(AIR 2005 SC 2897) and Popat and Kotecha Property v.
State Bank of India Staff Assn.(2005) 7 SCC 510 the Bench
referred the following question of law for consideration to a
larger Bench:
“Whether the words “barred by law” under Order 7, Rule
11(d) would also include the ground that it is barred by the
law of limitation. In Balasaria Construction (P) Ltd. v.
Hanuman Seva Trust,(2006) 5 SCC 662, keeping in view the
importance of question and the conflict of opinion, the
Supreme Court referred the matter to a larger Bench.”
24. The Hon’ble Apex Court in the case of T. Arivandandam v.
T.V. Satyapal, [1977 (4) SCC 467] has observed something very
important in strong words which should not be lost sight of
while deciding a matter arising under the provisions of Order VII
Rule 11 of the C.P.C. Relevant observations of Hon’ble Apex
Court are as under:
“5. We have not the slightest hesitation in condemning the
petitioner for the gross abuse of the process of the court
repeatedly and unrepentantly resorted to. From the
statement of the facts found in the judgment of the High
Court, it is perfectly plain that the suit now pending before
the First Munsif’s Court Bangalore, is a flagrant misuse of
the mercies of the law in receiving plaints. The learned
Munsif must remember that if on a meaningful not formal
reading of the plaint it is manifestly vexatious, and
meritless, in the sense of not disclosing a clear right to sue,
he should exercise his power under O. VII R. 11, C. P. C.
taking care to see that the ground mentioned therein is
fulfilled. And, if clever drafting has created the illusion of a
cause of action, nip it in the bud at the first hearing by
examining the party searchingly under O. X. C.P.C. AnPage 21 of 60
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activist Judge is the answer to irresponsible law suits. The
trial Courts would insist imperatively on examining the party
at the first hearing so that bogus litigation can be shot down
at the earliest stage. The Penal Code is also resourceful
enough to meet such men, (Ch. XI) and must be triggered
against them. In this case, the learned Judge to his cost
realised what George Bernard Shaw remarked on the
assassination of Mahatma Gandhi.
“It is dangerous to be too good.””
6. The trial Court in this case will remind itself of S. 35A, C.
P. C. and take deterrent action if it is satisfied that the
litigation was inspired by vexatious motives and altogether
groundless. In any view, that suit has no survival value and
should be disposed of forthwith after giving an immediate
hearing to the parties concerned.”
25. Thus, meaningful – not formal reading of the plaint, if
plaint is found manifestly vexatious, and meritless, in the sense
of not disclosing a clear right to sue, the Trial Court should
exercise its power under Order VII Rule 11, C.P.C. taking care to
see that the grounds mentioned therein is fulfilled. If a clever
drafting creates the illusion of a cause of action, it has to be
nipped in the bud at the first hearing by examining the party
searchingly under Order 10 of the C.P.C.
26. In the case of Laxmiben Mafatlal Patel (supra), Co-ordinate
Bench of this Court has held in para 26,27 and 28 as under :-
“26 It is a settled rule of law that the plea of rejection of
plaint is founded on the “PLEA OF DEMURRER”. A person
raising such plea in law has to take the facts as stated by
the opponent as correct. Despite tentative admission of such
correctness, the plaint does not disclose a complete or even
partial cause of action or the relief claimed is barred by lawPage 22 of 60
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and thus, the plaint is liable to be rejected within the
provisions of Order VII, Rule 11 of the Code of Civil
Procedure. Plain language of this rule shows that for
determination of an application under this provision, the
Court has to look into the plaint. This concept has been
extended by judicial pronouncement of various Courts so as
to take within its ambit even the documents filed by the
plaintiff along with plaint or subsequent thereto but prior to
the hearing of such application. It would be more so where
the documents have been referred to in the plaint itself. But
the defence raised by the defendants in his written
statement or the documents filed along therewith certainly
falls beyond the zone of consideration, where an application
for rejection of a plaint is being considered by the Court. The
language of the rule does not admit any scope for doubt that
the written statement filed by the defendant cannot be
referred or relied upon by the applicants for decision of such
application. Whether the plaint discloses any cause of action
or not, is a question founded on the basic cause of action
pleaded by the plaintiff in his plaint. It must thus
necessarily be construed that language of Rule 1 is
circumscribed by the limitation of reading the plaint at best
with its supporting documents. [See : ABN – AMRO Bank vs.
PUPDA, AIR 2000 P & H 44].
27. A Full Bench of the Punjab and Haryana High Court in
the case of Harnam Singh v. Surjit Singh, AIR 1984 Punj and
Hary 126, held as under:
“It is well settled that a cause of action means every
fact which, if traversed, would be necessary for the
plaintiff to prove in order to support the right to a
judgment in his favour. In other words, it is a bundle of
facts which taken with the law applicable to them
gives the plaintiff a right to relief against the tenant.
Negatively it does not comprise the evidence necessary
to prove the bundle of facts and equally has no relation
whatsoever to the defence, which may be set up by the
defendant nor does it depend on the character of the
relief prayed for by the plaintiff.”
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28. The well accepted canons of civil jurisprudence makes a
clear distinction between “plaintiff has no cause of action”
and “the plaint does not disclose cause of action” in the
earlier part, there is complete absence of a right to sue.
While in the latter, the right to sue may exist, but it is not
well founded on the basis of the averments made in the
plaint. The plaint lacks essential and material particulars
which would give an effective cause of action to the plaintiff.
Where on the face of it, the plaint does not disclose any
cause of action, the plaint may be liable to be rejected, but
where the parties are to produce oral and documentary
evidence to substantiate and support their cause of action
and relief claimed for in the plaint, the Court has to consider
the entire material placed on record and the suit would be
liable to be decided on merit.”
27. Incontrovertible aspects which this Court has noticed and
narrated herein-above, the plaintiff at no point of time, until
filing of Regular Civil Suit No.136 of 2015 and suit on hand filed
claimed her share in suit land as heirs of Gulabibi, however, she
did not question transaction of property to third party. Since
there is sudden escalation in price of land, the plaintiff claims
that they have undivided share in the immovable property. Apt
to note that in promulgation Entry No.74, at no point of time,
name of Gulabibi appears as title holder, yet she did not
question about it, her daughters also did not question but the
grand daughters. The question arises whether grand daughters
on maternal side can claim any relief. In order to claim relief, the
plaintiff pleaded that property is ancestral and word ‘ancestral’
appears atleast three times in the plaint pleadings. The plaintiff
is claiming share on the basis of vested inheritance in the suit
land which is concept derived on the touch stone of right by
birth. The plaintiff on the one hand claims that suit land is
ancestral property and has share in ancestral property, whereas
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on the other hand, claims the same on the basis of principle of
Mohammedan Law citing some judgments in the pleadings
saying that inheritance is bound on the death of mother. The
plaintiff under clever drafting avoided promulgation entry no.74
and entry no.689 on realizing that those were undisputed entries
as these entries were never challenged. Moreover, the plaintiff is
silent on the aspect that in life time Gulabibi or her daughters,
why they have not asked for their share despite transaction of
suit land took place in front of their eyes. These issues being
stark require explanation from the plaintiff to come out from
operation of limitation as all these transaction have expressly
oust plaintiff from claiming share in the suit land.
28. It is undisputed fact that all the transactions took place
through registered documents and it is deemed that plaintiff has
knowledge of such transaction. Section 3 of the Transfer of
Property Act say so.
28.1. It is mandatory that in order to get relief, the plaintiff has
to aver all material facts. In other words, it is necessary for the
plaintiff to aver and prove in order to succeed in the suit. A
cause of action means every fact, which if traversed, it would be
necessary for the plaintiff to prove in order to support his right
to a judgment of the court. In other words, a bundle of facts is
necessary for the plaintiff to prove in order to succeed in the
suit. Hon’ble Apex Court in the case of T. Arivandandam (supra)
held that ‘It is clear that if the allegations are vexatious and
meritless and not disclosing a clear right or materials to sue, it is
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the duty of the trial Judge to exercise his power under Order VII,
Rule 11. If clever drafting has created the illusion of a cause of
action, as observed by Hon’ble Apex Court, it should be nipped
in the bud at the first hearing by examining the parties under
Order X of the Code.”
29. As observed in precedent para plaintiff’s grand mother –
Gulabibi did not assert her right, nor her daughters; the plaintiff
was not even born when promulgation entry and subsequent
revenue entry qua suit land was made in presence and
knowledge of Gulabibi. She did not raise any claim. Thus, it can
be said that Gulabibi or her daughters never questioned sale of
disputed property in favour of defendants that too by way of
registered sale deed, principle of waiver applies..
30. At this stage, worthy reference can be made to judgment in
the case of Shri Mukund Bhavan Trust v/s. Shrimant
Chhatrapti Udayan Raje Pratapsinh Maharaj Bhonsle and
Anr. [ 2024 SCC Online SC 3844]. Hon’ble Apex Court in para
14, 15 and 16 has held as under :-
“14. The plaintiff, in our wisdom, cannot assert or deny
something which was whether within the knowledge of his
predecessor or not, when he was not even born. Irrespective
of the above, the fact that the predecessors of the
Respondent No.1/plaintiff, never challenged the sale of
property to the Defendant No.1/appellant by court auction
and the subsequent registration of the deeds, despite
constructive notice, would imply that they had acceded to
the title of the appellant, which cannot now be questioned by
the plaintiff after such long time. There is also a presumptionPage 26 of 60
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in law that a registered document is validly executed and is
valid until it is declared as illegal. In this regard, this Court
in Prem Singh v. Birbal (2006 (5) SCC 353), held as under:
“27. There is a presumption that a registered document is
validly executed. A registered document, therefore, prima
facie would be valid in law. The onus of proof, thus, would
be on a person who leads evidence to rebut the presumption.
In the instant case, Respondent 1 has not been able to rebut
the said presumption.”
15. At this juncture, it would be relevant to refer to relevant
portion of Section 3 of the Transfer of Property Act, 1882,
which reads as under:
“3. Interpretation clause…… …… “a person is said to have
notice” of a fact when he actually knows that fact, or when,
but for wilful abstention from an enquiry or search which he
ought to have made, or gross negligence, he would have
known it.
Explanation I.–Where any transaction relating to
immoveable property is required by law to be and has been
effected by a registered instrument, any person acquiring
such property or any part of, or share or interest in, such
property shall be deemed to have notice of such instrument
as from the date of registration or, where the property is not
all situated in one sub-district, or where the registered
instrument has been registered under sub-section (2) of
section 30 of the Indian Registration Act, 1908 (16 of 1908),
from the earliest date on which any memorandum of such
registered instrument has been filed by any Sub-Registrar
within whose sub-district any part of the property which is
being acquired, or of the property wherein a share or interest
is being acquired, is situated:
Provided that–(1) the instrument has been registered and
its registration completed in the manner prescribed by the
Indian Registration Act, 1908 (16 of 1908), and the rules
made thereunder, (2) the instrument or memorandum has
been duly entered or filed, as the case may be, in books kept
under section 51 of that Act, and(3)the particulars regarding
the transaction to which the instrument relates have beenPage 27 of 60
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correctly entered in the indexes kept under section 55 of that
Act.
Explanation II.–Any person acquiring any immovable
property or any share or interest in any such property shall
be deemed to have notice of the title, if any, of any person
who is for the time being in actual possession thereof.
Explanation III.–A person shall be deemed to have had
notice of any fact if his agent acquires notice thereof whilst
acting on his behalf in the course of business to which that
fact is material:
Provided that, if the agent fraudulently conceals the fact, the
principal shall not be charged with notice thereof as against
any person who was a party to or otherwise cognizant of the
fraud.”
16. When a portion of the property has been conveyed by
court auction and registered in the first instance and when
another portion has been conveyed by a registered sale deed
in 1952, there is a constructive notice from the date of
registration and the presumption under Section 3 of the
Transfer of Property Act, comes into operation. The
possession, in the present case, also has been rested with
the appellant before several decades, which operates as
notice of title. This Court in R.K. Mohd. Ubaidullah v. Hajee
C. Abdul Wahab (2000 (6) SCC 402), held as follows:
“15. Notice is defined in Section 3 of the Transfer of Property
Act. It may be actual where the party has actual knowledge
of the fact or constructive. “A person is said to have notice”
of a fact when he actually knows that fact, or when, but for
wilful abstention from an inquiry or search which he ought to
have made, or gross negligence, he would have known it.
Explanation II of said Section 3 reads:
“Explanation II.–Any person acquiring any immovable
property or any share or interest in any such property shall
be deemed to have notice of the title, if any, of any person
who is for the time being in actual possession thereof.”
Section 3 was amended by the Amendment Act of 1929 in
relation to the definition of “notice”. The definition has been
amended and supplemented by three explanations, which
settle the law in several matters of great importance. For the
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immediate purpose Explanation II is relevant. It states that
actual possession is notice of the title of the person in
possession. Prior to the amendment there had been some
uncertainty because of divergent views expressed by
various High Courts in relation to the actual possession as
notice of title. A person may enter the property in one
capacity and having a kind of interest. But subsequently
while continuing in possession of the property his capacity
or interest may change. A person entering the property as
tenant later may become usufructuary mortgagee or may be
agreement holder to purchase the same property or may be
some other interest is created in his favour subsequently.
Hence with reference to subsequent purchaser it is essential
that he should make an inquiry as to the title or interest of
the person in actual possession as on the date when the
sale transaction was made in his favour. The actual
possession of a person itself is deemed or constructive notice
of the title if any, of a person who is for the time being in
actual possession thereof. A subsequent purchaser has to
make inquiry as to further interest, nature of possession and
title under which the person was continuing in possession
on the date of purchase of the property. In the case on hand
Defendants 2 to 4 contended that they were already aware
of the nature of possession of the plaintiff over the suit
property as a tenant and as such there was no need to
make any inquiry. At one stage they also contended that
they purchased the property after contacting the plaintiff, of
course, which contention was negatived by the learned trial
court as well as the High Court. Even otherwise the said
contention is self-contradictory. In view of Section 19(b) of
the Specific Relief Act and definition of “notice” given in
Section 3 of the Transfer of Property Act read along with
Explanation II, it is rightly held by the trial court as well as
by the High Court that Defendants 2 to 5 were not bona fide
purchasers in good faith for value without notice of the
original contract.”
31. Transfer of suit property started from the year 1969 by
registered sale deed and continued upto the year 2015 in favour
of defendants. All these transactions took place prior to filing of
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the suit. In view of section 3 of the Transfer of Property Act,
presumably plaintiff has constructive notice of transaction from
date of registration of the deed. The plaintiff claims relief under
section 31 of the Specific Relief Act that these transactions are
affecting his right in the suit land, hence, they are not binding.
The plaintiff has filed suit in the year 2016 challenging first
transaction which took place in the year 1969. Therefore, suit is
filed after 47 years. The suit land has been changed so many
hands since the year 1969 and therefore, suit filed by the
plaintiff even prima facie is barred by law of limitation.
32. Learned Trial Court dismissed the application filed under
Order 7 Rule 11 of CPC on the ground that question of limitation
is mixed question of law and facts, but in the present case,
plaintiff who has constructive notice of sale deed, by clever
drafting pleaded cause of action without specifying any
particular date which indicate that when right to sue accrue first
time. It starts from the first transaction. Successive transaction
would give rise to fresh cause of action which is suffice to
indicate that suit of plaintiff is time barred. At this stage,
reference is made to para 18,19,19.1, 23 and 25 of the judgment
in the case of Shri Mukund Bhavan Trust (supra), wherein, the
Hon’ble Apex Court has held as under :-
“18. Continuing further with the plea of limitation, the Courts
below have held that the question of the suit being barred
by limitation can be decided at the time of trial as the
question of limitation is a mixed question of law and facts.
Though the question of limitation generally is mixed question
of law and facts, when upon meaningful reading of the
plaint, the court can come to a conclusion that under thePage 30 of 60
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given circumstances, after dissecting the vices of clever
drafting creating an illusion of cause of action, the suit is
hopelessly barred and the plaint can be rejected under
Order VII Rule 11. In the present case, we have already held
that 02.03.2007 is a fictional date. It is not a case where a
fraudulent document was created by the appellant or his
predecessors. The title of the suit property as observed by us
earlier was conveyed in 1938 and 1952, and what
transpired later by way of compromise was only an
affirmative assertion by the State. While so, the prayer (a)
made in the suit relates to declaration to the effect that the
Respondent No. 1 is the owner of the suit properties.
19. As per Section 31 of the Specific Relief Act, 1963, a
declaration to adjudge the documents as void or voidable
must be sought if it causes a serious injury. In the present
case, the sale deeds undisputably stand adverse to the
interest and right of the plaintiff and hence, a relief to
declare them as invalid must have been sought. Though the
plaintiff has pleaded the documents to be void and sought to
ignore the documents, we do not think that the document is
void, but rather, according to us, it can only be treated as
voidable. The claim of the plaintiff that the grant is only a
revenue grant and not a soil grant, has not been accepted by
the State which entered into a compromise. In paragraph 14
of the plaint, there is an averment that the original sanad
was lost and a new sanad was given to the effect that the
inam was a revenue grant based on the report of the Inam
Commissioner. Again, specific dates are not mentioned in the
plaint. In paragraph 25, the plaintiff alleges that third party
rights were created by the Gosavi family without any right.
Here also, the details are vague. It can be inferred that such
rights ultimately culminated into court auction, in which, the
property was sold to the appellant. Since the original Sanad
was lost, the plaintiff had initiated a suit against the State
which was compromised. It is not in dispute that there was
a grant. There is only a dispute with regard to the contents
of the Sanad, which was lost. In the absence of the original
Sanad, it is not possible for any court to determine the
contents of the same. The alleged misrepresentation is
neither to the character nor is there any allegation of forgery
or fabrication. It is also settled law that a document is void
only if there is a misrepresentation on its character and
when there is a misrepresentation in the contents, it is onlyPage 31 of 60
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voidable. In the present case, the averments in the plaint
make out only a case for voidabale transaction and not a
void transaction. Fraud is merely pleaded without any
specific attributes but based on surmises and conjectures. It
will be useful to refer to the judgment of this Court in
Ningawwa v. Byrappa Shiddappa Hireknrabar24, wherein it
was held as under:
“5. The legal position will be different if there is a fraudulent
misrepresentation not merely as to the contents of the
document but as to its character. The authorities 24 1968
SCC OnLine SC 206 : (1968) 2 SCR 797 : (1968) 2 SCJ 555 :
AIR 1968 SC 956 make a clear distinction between
fraudulent misrepresentation as to the character of the
document and fraudulent misrepresentation as to the
contents thereof. With reference to the former, it has been
held that the transaction is void, while in the case of the
latter, it is merely voidable. In Foster v. Mackinon [(1869) 4
CP 704] the action was by the endorsee of a bill of exchange.
The defendant pleaded that he endorsed the bill on a
fraudulent representation by the acceptor that he was
signing a guarantee. In holding that such a plea was
admissible, the Court observed:
“It (signature) is invalid not merely on the ground of fraud,
where fraud exists, but on the ground that the mind of the
signer did not accompany the signature; in other words, that
he never intended to sign, and therefore in contemplation of
law never did sign, the contract to which his name is
appended…. The defendant never intended to sign that
contract or any such contract. He never intended to put his
name to any instrument that then was or thereafter might
become negotiable. He was deceived, not merely as to the
legal effect, but as to the ‘actual contents’ of the instrument.”
This decision has been followed by the Indian courts Sanni
Bibi v. Siddik Hossain [AIR 1919 Cal 728], and Brindaban v.
Dhurba Charan [AIR 1929 Cal 606]. It is not the contention
of the appellant in the present case that there was any
fraudulent misrepresentation as to the character of the gift
deed but Shiddappa fraudulently included in the gift deed
plots 91 and 92 of Lingadahalli village without her
knowledge. We are accordingly of the opinion that the
transaction of gift was voidable and not void and the suit
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must be brought within the time prescribed under Article 95
of the Limitation Act.” 19.1. In the present case, the right to
sue had first accrued to the predecessors of the plaintiff,
when the properties were brought for sale by the court. No
challenge was made to the court auction or to the
conveyance in 1952. At this length of time, we can only
assume that the predecessors of the Plaintiff had not
initiated any proceedings as according to them, either it was
a grant of soil or during that period, the rights had not
resumed. The plaintiff had become a major by 1984. By
virtue of Article 60 of the Limitation Act, 1963, the plaintiff
has a right to seek a declaration that the alienation of a
property in which he had a right, was void within 3 years.
Though the Article prima facie looks to be applicable only to
cases, where there was an alienation by the guardian, we
feel that the period of limitation would be applicable even
when a third party had alienated the share or property of a
minor. Even otherwise, Article 58 would come into operation
and the plaintiff ought to have filed the suit within three
years from the date when he became a major to seek any
declaratory relief, as it is the date on which his right to sue
first is deemed to have been accrued. The plaintiff has
asserted that by government resolutions in 1980 and 1984
he has acquired the title over the properties. Therefore, as a
prudent man, he ought to have initiated necessary steps to
protect his interest. Having failed to do so and created a
fictional date for cause of action, the plaintiff is liable to be
non-suited on the ground of limitation.
23. Further, in the aforesaid suit, the Respondent No.1 also
sought possession of the suit properties based on title. As
per Article 65 of the Limitation Act, 1963, the possession of
immovable property or any interest therein, based on title
can be sought within twelve years. From the records, it is
evident that the possession of the subject properties was
initially with the Government of Maharashtra, then with the
Gonsavis and thereafter with the Defendant No.1 and it can
be safely said that at least for a century, the Respondent
No.1 nor his predecessors have been in possession of the
properties after the grant of Inam. The plaintiff has failed to
sue the appellant/defendant or the State for possession
within twelve years. We have already held that the title
claim of the plaintiff is barred by limitation and therefore,
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the claim for possession is also barred and consequently,
the relief of recovery of possession is also hopelessly barred
by limitation.
25. Regarding the averments made in the plaint relating to
fraud played on the plaintiff by the defendants in relation to
the compromise decrees obtained in their favour, we are of
the view that they are vague and general, besides baseless
and unsubstantiated. Rather, no case can be culled out from
the averments made in the plaint in this regard. The plea of
fraud is intrinsically connected with the nature of Inam. We
have already discussed the plea of fraud in the preceding
paragraphs. We are also of the view that the plea has been
raised only to overcome the period of limitation. Admittedly
the Plaintiff is a stranger to the suits which ended in
compromise. Therefore, in view of the direct bar under Order
XXIII Rule 3A of CPC, he cannot seek a declaration ‘that the
compromise decrees passed in Spl. Civil Suit Nos.l52/1951
and 1622/1988 and Civil Appeal No.787/2001, Pune are
void ab initio, null and void and the same are liable to be set
aside’. The law on this point is also already settled by this
Court in Triloki Nath Singh v. Anirudh Singh28. The bar
under Order XXIII Rule 3A of CPC is applicable to third
parties as well and the only remedy available to them would
be to approach the same court. In the present case, such an
exercise is also not possible in view of the bar of limitation.
Hence, we find the suit to be unsustainable.”
33. Worthy reference is also made to judgment of Hon’ble Apex
Court in the case of Mohd. Noorul Hoda v/s. Bibi Raifunnisa
[1996 (7) SCC 767], whereby, Hon’ble Apex Court referred to
effect of willful abstention from making enquires and laid down
following :-
“5. Section 55(1) of the Transfer of Property Act, 1882
regulates rights and liabilities of the buyer and seller. The
seller is bound to disclose to the buyer any material defect in
the property or in the seller’s title thereto of which the seller
is, and the buyer is not, aware, and which the buyer could
not with ordinary care discover. The seller is to answer, toPage 34 of 60
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the best of his information, all relevant questions put to him
by the buyer in respect of the property or the title thereto.
The seller shall be deemed to contract with the buyer that
the interest which the seller professes to transfer to the
buyer subsists and that he has power to transfer the same.
Section 3 provides that “a person is said to have a notice of
a fact when he actually knows the fact, or when but for
wilful abstention from an enquiry or search which he ought
to have made, or gross negligence, he would have known it”.
Explanation II amplifies that “any person acquiring any
immovable property or any share or interest in any such
property shall be deemed to have notice of the title, if any, of
any person who is for the time being in actual possession
thereof”. Constructive notice in equity treats a man who
ought to have known a fact, as if he actually knows it.
Generally speaking, 25 (2000) 7 SCC 702 26 (1996) 7 SCC
767 constructive notice may not be inferred unless some
specific circumstances can be shown as a starting point of
enquiry which if pursued would have led to the discovery of
the fact. As a fact it is found that Rafique filed the sale deed
dated 1-12-1959 executed in his favour by Mahangu, in Title
Suit No. 220 of 1969 for which the petitioner claims to have
derivative title through Rafique. Rafique had full knowledge
that despite the purported sale, Bibi Raifunnisa got the
preliminary decree passed in 1973 and in 1974 under the
final decree the right, title and interest in the suit property
passed on to her. Under Section 55 when second sale deed
dated 6-9-1980 was got executed by the petitioner from
Rafique, it is imputable that Rafique had conveyed all the
knowledge of the defects in title and he no longer had title to
the property. It is also a finding of fact recorded by the
appellate court and affirmed by the High Court that the
petitioner was in know of full facts of the preliminary decree
and the final decree passed and execution thereof. In other
words, the finding is that he had full knowledge, from the
inception of Title Suit No. 220 of 1969 from his benamidar.
Having had that knowledge, he got the second sale deed
executed and registered on 6-9-1980. Oblivious to these
facts, he did not produce the second original sale deed nor is
an attempt made to produce secondary evidence on proof of
the loss of original sale deed.
6. The question, therefore, is as to whether Article 59 or
Article 113 of the Schedule to the Act is applicable to the
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facts in this case. Article 59 of the Schedule to the Limitation
Act, 1908 had provided inter alia for suits to set aside
decree obtained by fraud. There was no specific article to set
aside a decree on any other ground. In such a case, the
residuary Article 120 in Schedule III was attracted. The
present Article 59 of the Schedule to the Act will govern any
suit to set aside a decree either on fraud or any other
ground. Therefore, Article 59 would be applicable to any suit
to set aside a decree either on fraud or any other ground. It
is true that Article 59 would be applicable if a person
affected is a party to a decree or an instrument or a contract.
There is no dispute that Article 59 would apply to set aside
the instrument, decree or contract between the inter se
parties. The question is whether in case of person claiming
title through the party to the decree or instrument or having
knowledge of the instrument or decree or contract and
seeking to avoid the decree by a specific declaration,
whether Article 59 gets attracted? As stated earlier, Article
59 is a general provision. In a suit to set aside or cancel an
instrument, a contract or a decree on the ground of fraud,
Article 59 is attracted. The starting point of limitation is the
date of knowledge of the alleged fraud. When the plaintiff
seeks to establish his title to the property which cannot be
established without avoiding the decree or an instrument
that stands as an insurmountable obstacle in his way which
otherwise binds him, though not a party, the plaintiff
necessarily has to seek a declaration and have that decree,
instrument or contract cancelled or set aside or rescinded.
Section 31 of the Specific Relief Act, 1963 regulates suits for
cancellation of an instrument which lays down that any
person against whom a written instrument is void or
voidable and who has a reasonable apprehension that such
instrument, if left outstanding, may cause him serious
injury, can sue to have it adjudged void or voidable and the
court may in its discretion so adjudge it and order it to be
delivered or cancelled. It would thus be clear that the word
‘person’ in Section 31 of the Specific Relief Act is wide
enough to encompass a person seeking derivative title from
his seller. It would, therefore, be clear that if he seeks
avoidance of the instrument, decree or contract and seeks a
declaration to have the decrees set aside or cancelled he is
necessarily bound to lay the suit within three years from the
date when the facts entitling the plaintiff to have the decree
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set aside, first became known to him.
7. The question, therefore, is as to when the facts of granting
preliminary and final decrees touching upon the suit land
first became known to him. As seen, when he claimed title to
the property as owner and Rafique to be his benamidar, as
admitted by Rafique, the title deed dated 1-12-1959 was
filed in Title Suit No. 220 of 1969. Thereby Rafique had first
known about the passing of the preliminary decree in 1973
and final decree in 1974 as referred to earlier. Under all
these circumstances, Article 113 is inapplicable to the facts
on hand. Since the petitioner claimed derivative title from
him but for his wilful abstention from making enquiry or his
omission to file the second sale deed dated 6-9-1980, an
irresistible inference was rightly drawn by the courts below
that the petitioner had full knowledge of the fact right from
the beginning; in other words right from the date when title
deed was filed in Title Suit No. 220 of 1969 and preliminary
decree was passed on 2-1-1973 and final decree was
passed on 5-2-1974. Admittedly, the suit was filed in 1981
beyond three years from the date of knowledge. Thereby,
the suit is hopelessly barred by limitation. The decree of the
appellate court and the order of the High Court, therefore,
are not illegal warranting interference.”
34. In the present case, it is not case of plaintiff that deceased
Mohammadbhai Jamalbhai played fraud at any point of time or
his heirs have played fraud. It is case where, on death of
Mohammadbhai Jamalbhai, entry of his son i.e. Jamalbhai was
mutated, it was promulgation entry and then another entry to
correct promulgation entry, however, none of them were objected
by real sister – Gulabibi, even her first generation did not object
during their life time. Suit land was transferred to third party,
whereby, third party’s possession was created since the year
1969. The plaintiff firstly filed collusive suit No.136 of 2015
specifying revenue entries on record, however, did not refer latest
revenue entry. The plaintiff though had constructive notice of
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subsequent sale and mutation of entries, played fraud with the
Court and got compromise decree and tried to place it before the
revenue authorities unsuccessfully. Defendants of the present
suit filed Special Civil Application No.9124 of 2016 before this
Court challenging compromise decree. Co-ordinate Bench on
13.06.2016 while staying operation of compromise decree which
took place in Regular Civil Suit No.136 of 2015 held as under :-
“2. It is relevant to note that respondent No.10 – original
defendant Aminabi also executed one registered declaration,
wherein she confirmed all the previous sale transactions
and said confirmation deed was executed by her along with
her three daughters on 29.12.2014. Respondent Nos.1 to 9 –
original plaintiffs filed the above suit claiming their right as
legal heirs and representative of deceased Rahematbibi
Gulam Haider, Mariambibi Abdul Rahim and Subanbibi
Amirmiya, who are daughters of Gulabbibi Limbabhai.
3. Surprisingly, though respondent No.10-original defendant
executed registered declaration in the year 2014, wherein
she confirmed all the previous sale transactions and yet
respondent No.10 by suppressing all above relevant facts
invited consent decree in the Lok Adalat, which prima facie,
appears to be collusive in nature. On the top of it, one Mr.
Krunal B. Patel for and on behalf of the original plaintiffs got
registered lis pendens of above Regular Civil Suit No.136 of
2015 on 16.5.2016 i.e. after disposal of the above suit on
12.3.2016 and therefore, present petition deserves
consideration.”
35. The object and purpose of suit of plaintiff is thus clear as
crystal reading aforesaid order. Plaintiff firstly filed Regular Civil
Suit No.136 of 2015 against defendant no.23/1 and got
compromise decree and then tried to take away title of the suit
land to exert pressure and to bitter the title of suit land. Co-
ordinate Bench of this Court in the case of Jaman Shamji
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Fadadu v/s. Sadik Mahmad Sidik [2023 (3) GLH 441] noticed
growing tendency of filing of suits by descendants on the
purported ground of discovery of documents, knowledge
acquired through their friends and relatives, so on, and so forth.
Possibly the reasons behind either are rise in the price of the
land, rivalry, sponsored litigation, to name a few. In para 33 and
34, Co-ordinate Bench has held as under :-
“33. Pertinently, there is a growing tendency of filing of suits
by the descendants on the purported ground of discovery of
documents, knowledge acquired through their friends and
relatives, so on, and so forth. Possibly the reasons behind
either are rise in the price of the land, rivalry, sponsored
litigation, to name a few. Although the ancestors for decades
don’t take any steps and the heirs, waking up from the
slumber, files the suit claiming their so called right over the
immovable properties more particularly the lands, couching
the prayers in such a manner, so as to bring the cause
within the limitation. Securing the defence in an applicaion,
that may be filed under Order VII Rule 11 of the Code, that
the limitation, is a mixed question of facts and law and
requires the trial. On the other hand, consider the
predicament of the party who purchases the property by the
registered transaction and continues to be in possession and
enjoyment and all of a sudden, after a decade or so, receives
a notice from the court of the suit with respect to the so
called rights cropped up of the heirs over the property.
Burdening a person with the rigours of litigation in such
facts and circumstances would be both harsh and
unjustified. Such attempt therefore on the part of the heirs
are required to be nipped in the bud. However, it must be
borne in mind that these considerations apply to genuine
legal transactions and cases.
34. The present is one of such cases, where, the heir of
Musa Pira discovers documents from the house, which
remained unnoticed by the great grandfather, grandfather
and the father. The heir that is the plaintiff without
disclosing as to when, from where and how the plaintiff hadPage 39 of 60
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discovered the document files the suit. As aforestated this
raises a question in the mind that if all the family members
are residing in the very same house, since decades, why the
documents were not within the knowledge of the other
family members, or the ancestors and the plaintiff being the
fourth generation was lucky enough to get those documents.
The theory put forward to say the least is unbelievable.”
Tone and tenure of the suit filed by plaintiff is matching
with the observation and finding extracted herein above.
Plaintiff’s suit filed through power of attorney appears to be a
sponsored litigation to cloud title of suit land.
37. Article 110 of the Limitation Act, 1963 provides limitation
to enforce right to share in joint family property and time beings
to run when exclusion becomes known to the plaintiff. In the
case on hand, plaintiff claims that Gulabibi has been denied her
share and they being grand-daughters are entitled to claim their
share in suit property. Gulabibi did not assert her share nor
claimed that her share has been fraudulently excluded from joint
property, in fact at no point of time, she questioned mutation
entries in the name of her real brother i.e. Jamalbhai. Gulabibi
even did not questioned or challenged mutation entry in favour
of widow of deceased Jamalbhai. Gulabibi did not even challenge
sale deed which took place in the year 1969 and subsequent sale
deeds. The plaintiff thus cannot claim what Gulabibi did not
claim. The plaintiff is silent on this aspect. The plaintiff filed
suit to declare that sale deed executed since the year 1975 is not
binding to her. Article 58 of the Limitation Act, 1963 provides
three years of limitation to obtain any other declaration and time
beings to run when the right to sue first accrues. Article 59 of
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Limitation Act, 1963 provides limitation of three years to cancel
or set aside an instrument or decree or for the rescission of
contract and time begins to run when the facts entitling the
plaintiff to have the instrument or decree cancelled or set aside
or the contract rescinded first become known to him.
38. Principle of constructive notice as discussed herein-above,
is clearly applicable to the facts of the present case, as suit of the
plaintiff challenges mortgage deed executed in the year 1969 or
sale deed executed in the year 1975 is clearly barred by law of
limitation. Series of registered sale deed executed in favour of
third party as noted herein-above are challenged after 47 years
of its execution. In the case of Fatima d/o. Rasulbhai Kajubhai
(supra) in identical fact situation, Co-ordinate Bench upheld
Appellate Court’s finding, it was case where by learned Appellate
Court while answering issue no.1 and 2 of that suit was pleased
to held that concept of ancestral property or joint property etc.
are alien to the principle of Mohammedan Law and also decided
that filing of cross objection under Order 41 Rule 22 of CPC is
obligatory only when certain findings against respondent is
needed to be challenged. Co-ordinate Bench extracted finding of
Appellate Court in para 9 which is reproduced herein under :-
“9. The first appellate Court explained the concept of family
settlement in context of the Mohammedan Law and took the
view that the trial Court ought not to have declared the
properties to be ancestral as there is no concept of
devolution of ancestral property in Mohammedan Law. To
put it in other words, the parties are Muslims, they would be
governed by their personal law. The first appellate Court
while dismissing the appeal mainly concentrating on thePage 41 of 60
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issue of limitation held as under:
ISSUE NO. 1 AND 2 :
17) It is admitted position that Ld. Trial Court in manifest
words reached to the conclusion that suit property are
ancestral property whereby plaintiffs and defendant No.1
have right upon it. Ld. Trial Court has also believed that this
suit property was unlawfully sold by the mother of the
plaintiffs and defendant No.1 by producing forged pedigree,
to defendant No.2, 3 and 4. Plaintiffs have also came out
with the case that the suit property is ancestral property
(see para3 of the plaint). Plaintiffs have also averred that on
death of grandfather Kajubhai Mirza, the father of plaintiffs
Rasulbhai Kajubhai Mirza, on principle of inheritance,
acquired suit property and since then, plaintiffs and
defendant No.1 hold share by birth in the said property (see
para3 of the plaint). So, the base and pivot of plaintiffs claim
is depend and hinge upon concept and noun of the suit
property as ancestral property. It is true that Ld. Trial Court
has also believed that suit property is ancestral property
and against such finding of Issue No.1, respondents have
not preferred separate memorandum of appeal, but, as per
the argument of Ld. Advocate for the respondents by way of
oral crosso bjection, respondent No.3 and 4 are challenging
the finding of Issue No.1 and 2 framed by the Ld. Trial
Court. So, it is right time to refer Order41, Rule22 of C.P.
Code, which is reproduced herein under Order41, R22 of
C.P.C.
“22. Upon hearing, respondent may object to decree as if he
had preferred separate appeal.
(1) Any respondent, though he may not have appealed from
any part of the decree, may not only support the decree [but
may also state that the finding against him in the Court
below in respect of any issue ought to have been in his
favour; and may also take any cross objection] to the decree
which he could have taken by way of appeal, provided he
has filed such objection in the Appellate Court within one
month from the date of service on him or his pleader of
notice of the day fixed for hearing the appeal, or within such
further time as the Appellate Court may see fit to allow.
(2) Form of objection and provisions applicable thereto Such
crossobjection shall be in the form of a memorandum, andPage 42 of 60
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the provisions of rule], so far as they relate to the form and
contents of the memorandum of appeal, shall apply thereto.
[***] Subrule (3) omitted by the Code of CPC (Amendment)
Act, 1999, S. 31 (vii)
(4) Where, in any case in which any respondent has under
this rule filed a memorandum of objection, the original
appeal is withdrawn or is dismissed for default, the
objection so filed may nevertheless be heard and determined
after such notice to the other parties as the Court thinks fit.
(5) The provisions relating to pauper appeals shall, so far as
they can be made applicable, apply to an objection under
this rule.”
17.1) In case of Nalini Vs. Padmanabhan Krishnan; AIR
1994 Kerala 14, Hon’ble Kerala High Court held that “even
in second appeal, defendant can challenge the finding of
particular issue although he had filed no appeal or cross
objection in the first Appellate Court.”
18) Before Hon’ble Supreme Court in case of S. Nazer Ahmed
Vs. State Bank of Mysore; AIR 2007 S.C. 989, the issue
was, “when an appeal is filed, the respondent can file cross
objection. But the real question is whether the respondent
without filing a cross objection can assail the finding on any
issue by the lower Court.
The Hon’ble Supreme Court held that the respondent in an
appeal is entitled to support the decree of the trial Court
even by challenging any of the findings that might have
been rendered by the trial Court against him. For supporting
the decree passed by the trial Court, it is not necessary for a
respondent in the appeal to file a memorandum of
crossobjections challenging a particular finding that is
rendered by the trial Court against him when the ultimate
decree itself is in his favour. A memorandum of cross
objections is needed only if the respondent claims any relief
which had been negatived to him by the trial Court and in
addition to what he has already been given by the decree
under challenge.”
19) Keeping in mind the law laid down by and on touch
stone of Order41, Rule22 of C.P. Code, it is not obligatory for
respondent to file memorandum of cross objection to
challenge finding of a particular issue which is adverse to
him. He can even by oral argument challenge that finding
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while supporting the legitimate decree when it is in his
favour. If defendant/respondent has filed counter suit before
the Ld. Trial Court and made prayer for a specific relief
against the plaintiff and if such relief is negated by the Ld.
Trial Court and made prayer if defendant wants that relief is
to be in his favour. In appeal filled by unsuccessful
plaintiffs, he needs to file memorandum of crossobjection.
20) So, in present case, although respondent No.3 and 4
have not filed memorandum of cross objection, his
arguments qua finding of Issue No.1 and 2, which runs
against them, can be considered under the concept of cross
objection.
21) As noted earlier, undeniably parties are governed by
Mohammedan Law. Their rule of succession is also governed
by specific provision made thereunder Mohammedan Law.
22) Section122 of the Mohammedan Law penned by B.R.
Verma published by Law Publishers (India) Pvt. Ltd., 7th
Edition reads as:”Sec. 122. Rights of the heirs arise on the
date of a person’s death. __ The right of an heir comes into
existence only on the death of the person of whom he or she
is an heir.”
23) Thus, in Mohammedan Law, inheritance descends and
not ascends. In so far as claiming any property as an
ancestral property is concerned, one has to claim right by
birth. This idea or custom is not recognized by the tenet of
Mohammedan Law. According to Mohammedan Law, no one
can have any share in the inheritance of another till after his
death. The right of each heir is several and distinct and
arises immediately on the death of the person of whom he is
an heir. (See Amir Dulhin v. Baij Nath Singh, I.L.R.21
Cal.311 at p.316). The right of an heirapparent or a
presumptiveheir who is entitled to succeed on the death of a
person does not arise till the death of such person. In
Muslim Law, his right to succeed is nothing more than a
mere spes successions, that is, a mere chance of succession.
23.1) The principle nemo est heirs viventis (a living person
has no heir) applies to Mohammedans law. Unlike the case
of Hindu co parceners or recognized a son or daughter
cannot claim any interest in the properties of a Muslim in his
lifetime.
24) So, the concept of ancestral property is alien and foreign
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to the tenets of the Mohammedan Law. No one in Muslim
can claim that a particular property is ancestral property
and it received in the hand of their father from grandfather
and as being a ancestral property, they have right in the
property of their father. Looking to this very basic and
fundamental concept of Mohammedan Law, I am of the
opinion that Ld. Trial Court has completely misguided itself
that the plaintiffs as the daughters of deceased Rasulbhai
Kajubhai has received the suit property from his father, the
plaintiffs have right in this ancestral property.
25) Now, if we go through the pleadings itself, it speaks
voluminous. According to plaintiffs, deceased Rasulbhai
Kajubhai died on 27.6.1960 and mutation entry qua suit
property took place on 3.10.1961. Some of the property went
in share of Baxanben, whereas some of them have gone in
share of Baxanben as well as defendant No.1 and all the
three properties came to be sold by registered sale deed on
31.12.1963, 2.8.1967 and 6.12.1969.
26) Concept of Family Settlement is also recognized in the
Mohammedan Law. It is well settled that a family
arrangement among the Mohammedan governed by the
personal Law of the Muslims is binding between the parties
inter se, the same way an arrangement binds the Hindus
since the principles governing such family settlement is the
same. Reference may be made to the case of Md. Amin V.
Fhakir Ahmed; AIR 1952 SC 358. In this case it was a
question about the validity of the transfer of interest in the
property of a minor by a de facto guardian. The Hon’ble
Supreme Court held that such a transfer is void yet Hon’ble
Supreme Court recognized the as a family settlement.
26.1) Normally, a family settlement may be effected to allay
disputes existing or apprehended in the interest of harmony
in the family or the preservation of property. However, it is
not always necessary that there should be existence of
dispute or possibility of dispute in future. It would be
sufficient if it is shown that there were actual or possible
claim and counter claim by parties. Oral family settlement is
also recognized.
27) Before appreciating this issue, it is worth to refer
deposition of plaintiff Fatima, wife of Fatesang Ghori
produced at Ex60. In cross examination, she accepted that
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she does not know, whether her mother and father have any
immovable property. She admitted that at the relevant time,
she was married and after the marriage, she never went to
her parental house. She has also admitted that she does not
know any particulars of property for which she claims relief.
At one instance, she admitted that these three agricultural
fields are not sold to any one and they still running in the
name of their father in revenue record. On second instance,
she said that these suit properties are sold. She also
admitted that she does not know whether her mother had
sole any of the property and she has no knowledge up till
the date. She admitted that she has not gone to collect the
particulars and papers from Government Office qua this suit
property. She has also admitted that she does not know that
agricultural land of which Survey Number is sold to whom,
but, according to her, it was informed to her by one
Ahmedbhai Imambhai. She has also admitted that the
suit/plaint is prepared by his advocate. She has just put the
thumb impression upon it. She has also admitted that she
has preferred this suit because the prices of this agricultural
land is now sky rocketing and therefore, she thinks to get
share from this suit property. She has also admitted that
she had never preferred any litigation before revenue office
challenging the revenue entries. She has also admitted that
she had never claimed any share qua suit property before
any revenue office. She has also admitted that she knows
that these suit properties are sold out 40 to 50 years before.
28) According to above factual aspects, it can be estimated
that on the death of deceased Rasulbhai Kajubhai, whereat,
all the three plaintiffs were married, or family settlement
took place between Baxanben and defendant No.1, by
which, out of three, two agricultural lands fell in share of bai
Baxan and one fell in share of defendant No.1 and such fact
is appearing from mutation entries that took place wayback
in the year 1961, not being objected till date by the
plaintiffs. So, this estimation is substantiated and is
presumed that the present plaintiffs have accepted the
family settlement and therefore, they never think for filing of
challenge to mutation entry till the filing of suit, which also
ignited at the hand of Mr. Ahmedbhai Imambhai, said to
have been relative of plaintiffs, for the purpose of getting
money as the prices of suit property goes sky rocketing. So,
there is no substance in the suit. The family settlement took
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place on the death of Rasulbhai Kajubhai. The suit property
fell in share of plaintiffs as well as defendant No.1. They
encash them wayback by selling precisely 40 to 50 years
ago. Now, plaintiffs came as to extort the money from
defendant and the title owner of the suit property.
29) It is deemed that each one came to know about
transaction as sale took place and registered with
subregistrar office. In present case, all three sale deeds
were came to be registered wayback in 1963, 1967 and
1969. Mutation entry on the basis of this registered sale
deed also took place in revenue records and for years
together, their purchasers are enjoying the suit property.
Plaintiffs have not averred that these deeds are obtained by
fraud and they came to know about the fraud only before
filing of the suit. It is very clear case of the plaintiffs that
these registered sale deeds were got registered wayback in
the year 1963, 1967 and 1969 respectively. At that time,
these sale deeds were executed by the person, whose name
was entered into the revenue record, which never got
challenged by the plaintiffs and therefore, as per the
Article59 of the Indian Limitation Act, such suits have to be
filed within three years when the facts entitling the plaintiffs
to have the instruments or decree cancelled or set aside or
the contract rescinded first become known to him. Here, by
illusion, cherima as well as jugllary of words, plaintiffs tried
to bring the suit within prescribed limitation, but, it was
hopeless and rightly beenbelieved by the Ld. Trial Court that
suit is time barred.
30) The authorities upon which Ld. Advocate Mr. Pandya
relied upon are distinguishable on the facts of those cases.
In case of Kedar Prasad (supra), Hon’ble Allahabad High
Court held that if property of joint family sold by one
member to any of the third party, other members though not
party to the instruments can bring suit for cancellation of
sale deed as their interests would be seriously injured if the
sale deed is left unchallenged in the present case, as
discussed herein above, case belongs to Mohammedan
Community, where by concept of joint family is alien and
therefore, this authority has no applicability.
33.1) Having gone through the plaint of the present case,
this Court does not find that present plaintiffs are deceived
by the purchaser and fraud was played upon them. It was
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plaintiffs case that they have right in the suit property as it
is termed as ancestral property and without their consent,
suit property is sold. So, facts of both the case have clench
on factual scenario and therefore, this case is not applicable.
35) In case on hand, respondent/ defendant No.3 and 4, by
filing written statement, have vociferously and vehemently
objected on the issue of limitation and which Ld. Trial Court
has decided kneecap of Issue No.3. Thus, the ratio flowing
from this Judgment is also not applicable to the facts of the
case on hand.
36) In nutshell, for above reasons, the finding of the Ld. Trial
Court qua Issue No.1 and 2 does not survive and
accordingly, they are upturned under Order41, Rule22
C.P.C. and Issue No. 1 and 2 framed by the Ld. Trial Court
is answered in Negative, whereas, finding qua limitation
delivered by the Ld. Trial Court subsists and accordingly, it
is upheld.”
38.1. In the case of Fatima d/o. Rasulbhai Kajubhai (supra),
Co-ordinate Bench in para 14 has held as under :-
“14. Having heard Mr. Bhatt, the learned counsel appearing
for the appellants and having gone through the two
judgments of the courts below, I am of the view that none of
the questions formulated in the memorandum of the Second
Appeal could be termed as substantial questions of law.
Indisputably, the suit came to be filed almost after more
than 50 years from the date of the registration of the sale
deeds. I am not impressed by the submission of Mr. Bhatt
that as the sale transactions are void, the period of limitation
would not apply and the suit filed by the plaintiffs was well
within time. I am also not impressed by the submission of
Mr. Bhatt as regards the findings of the first appellate Court
so far as the issues nos.1 and 2 are concerned.”
39. At this stage, let refer Section 115 of the Mohammedan
Law, 13th Edition by B.R. Verma, which states how the Estate of
a deceased Mohammedan is to be administered, it reads as
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under:-
“Sec. 115. How the estate of a deceased
Mohammedan is to be administered.-The estate of a
deceased Mohammedan shall be applied for satisfaction of
claims in the following order:
(1) reasonable funeral expenses and death-bed charges,
including fees for medical attendance and board and
lodging for one month previous to his death;
(2) expenses of obtaining probate or letters of administration
and other expenses on judicial proceedings necessary in
administering the estate;
(3) wages due from services rendered within three months
of the death of the deceased by any labourer; artisan or
domestic servant;
(4) debts due from the deceased according to their
respective priorities, if any:
(5) legacies to the extent to which they are valid under
Chapter XIII;
(6) distribution among the heirs of the residue, if any,
according to the provisions of Chapters X to XII.”
40. Plaintiff avoided relief of administration of deceased
property, but rather asked for partition claiming that suit
property is ancestral property and she has right by inheritance
meaning thereby, she has right by birth.
41. In para 11.7 to 11.19 in the case of Yusufbhai Walibhai
Patel (supra), this Court addressed the issue that whether
Mulsim law recognize right by birth. Relevant observations are
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as under :-
“11.7 Let me firstly refer Section 122 of the
Mohammedan Law, 13th Edition by B.R. Verma, which states
that:-
‘Sec. 122. Rights of the heirs arise on the date of
a person’s death.__The right of an heir comes into
existence only on the death of the person of whom he
or she is an heir.’11.8 The Mohammedan Law recognizes the Principle
or Latin phrase ‘Nemo est heres viventis – A living person
has no heir’. An heir apparent or presumptive has no such
reversionary interest as would enable him to object to any
sale or gift made by the owner in possession.
11.9 In Mohammedan Law, inheritance descends and
not ascends, unlike Hindu Law, plaintiff in the case on
hand, firstly claimed that the immovable properties in Lot-3A
is joint family property and in Lot-3B, she claims that those
immovable properties are purchased from selling of the
ancestral property.
11.10In so far as claiming any property as an ancestral
property is concerned, one has to claim right by birth, this
idea or custom is not recognized by the tenets of the
Mohammedan Law. As observed hereinabove, according to
Mohammedan law, no one can have any share in the
inheritance of another till after his death, the right of which
are several and distinct and arises immediately on the death
of the person of whom he is an heir (See Amir Dulhin v.
Baij Nath Singh, I.L.R. 2021 Calcutta 311 at Page 316)
11.11The right of an heir apparent or a presumptive heir,
who is entitled to succeed on the death of a person does not
arise until on the death of such person. In the Mohammedan
Law, right to succeed is nothing more than a mere spes i.e.
mere chance of succession.
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11.12The Principle of ‘Nemo est heres viventis – A living
person has no heir’ applies to Muslims. Thus, Muslim cannot
claim any right by birth, unlike Hindu Coparcenors. Thus,
there is no any interest in the properties in the lifetime of the
father claiming it to be by birth.
11.13Thus, the concept of ancestral properties is wholly
foreign to the principle of Mohammedan Law as the
Mohammedan Law does not recognize right by birth, but
recognizes that a living person has no heirs. Likewise, the
concept of ‘joint family’ is foreign to the Mohammedan Law.
The concept of ‘joint family’ implies only to a group of
members of many to one nuclear family together and not to a
group of people living separately. Thus, the Mohammedan
Law does not recognize the ‘joint family’ as a legal entity
and does not provide any rule applicable to the concept of
joint family property, as such. (See Shukrullah v. Zahura
Bibi, reported in AIR 1932 ALL. 512)
11.14The relationship between the members of the
Mohammedan family is distinct from that of the members of
the Hindu family. The presumption of the Hindu Law
regarding the joint family, joint family property or joint
family funds has got to be completely forgotten in deciding
cases between the parties who are Mohammedans. To make
out a case that the property is joint family property and to
set up a case of partition, the plaintiff needed to show by
sufficient material on record that it is a case either of
partnership by express terms or by implication on account of
the conduct of the parties or that there was a relationship of
principal and agent or any fiduciary relationship between
the parties.
11.15Had the plaintiff made out, such a case of partnership
or agency or fiduciary relationship, he/she can take
advantage of the provisions of the Indian Trusts Act and
provisions arising out of the relationship of partners or
principal or agent to claim the share in the property. There
may be cases where often, the family remains undivided for
some time after the death of the deceased, but there is no
such thing in Mohammedan law, recognizing the concept of
undivided joint hindu family or joint family property in sense
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of terms as used in Hindu Law (See Suddurtonnessa v.
Majada, I.L.R. 3 Calcutta 694 or Abdul Rashid v.
Sirajuddin, AIR 1993 ALL. 206 at page 209).
11.16Apt to note that, Mohammedan succession is
individual succession, it necessarily follows that there is no
presumption, as in the case of a joint Hindu family, that any
property has been purchased out of joint undivided property.
It must be remembered that when the members of the
Muslim family live in Commensality, they do not form a joint
family in the sense in which that expression is used with
regard to the Hindus, and in Mohammedan Law there is not,
as there is in Hindu Law, any presumption that the
acquisitions of the several members are made for the benefit
of the joint family. The acquisition of the property by some
members will not deemed to be for the benefit of all of them
jointly.
11.17It is well recognized principle of Mohammedan Law
that at the moment of death of Mohammedan, the estate of a
deceased Mohammedan devolves on his heirs and they take
the estate as tenants-in-common in specific shares. The
theory of representation, as available under the Hindus, is
not recognised under the Mohammedan Law and the
interest of each heir is separate and distinct. (See: Abdul
Huck v. Seetamsetti Narayan Naidu, reported in AIR
1928 Madras 14).
11.18Children in a Mohammedan family are not co-owners
in the sense that what is purchased by one person ensures
for the benefit of the others as the theory of representation is
unknown to Mohammedan Law, and nay, there is no
presumption that acquisition of one or more of the family are
to be presumed to be for the benefit of the family, unless
there is proof to the contrary. (See Mohd. Ibrahim v. Syed
Muhammed Abbu Bakker, reported in AIR 1976 Madras
84).
11.19The Apex Court in the case of Mansoor Saheb (Dead)
& Ors. v. Salima (D) By Lrs. & Ors., reported in 2024
SCC OnLine SC 3809 in regards to concept of joint or
undivided family, coparcener, etc. among Muslim, in para
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14, 15, 17 and 18 held as under:-
“14. Tahir Mahmood, in his book ‘The Muslim Law of
India’, 2nd Edition, Chapter 12 (Law of Inheritance)
Para II, has provided for various concepts related to
succession in Muslim Law which distinguish it from
other personal laws:
‘1. The Muslim law of succession is basically different
from the parallel indigenous systems of India. The
doctrine of janmswatvavada (right by birth), which
constitutes the foundation of the Mitakshara law of
succession, is wholly unknown to Muslim law. The law
of inheritance in Islam is relatively close to the
classical Dayabhaga law, though it differs also form
that on several fundamental points. The modern Hindu
law of succession (as laid down in the Hindu
Succession Act, 1956) is, however, much different from
both the aforesaid classical systems; it has a
remarkable proximity, in certain respects, to the
Muslim law of inheritance.
2. The division of heritage (daya) into sapratibandh
(‘obstructed’) and apratibandh (‘unobstructed’)-self-
acquired and ancestral- is equally foreign to Muslim
law. Whatever property one inherits (whether from his
ancestors or from others) is, at Muslim law, one’s
absolute property whether that person is a man or a
woman.
3. In Muslim law, so long as a person is alive he or she
is the absolute owner of his or her property; nobody
else (including a son) has any right, whatsoever, in it.
It is only when the owner dies and never before that
the legal rights of the heirs accrue. There is, therefore,
no question of a would be heir dealing in any way with
his future right to inherit.
4. The Indian legal concepts of ‘joint’ or ‘undivided’
family, ‘coparcenary’, karta, ‘survivorship’, and
‘partition’, etc., have no place in the law of Islam. A
father and his son living together do not constitute a
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‘joint family’; the father is the master of his property;
the son (even if a minor) of his, if he has any. The
same is the position of brothers or others living
together.
5. Unlike the classical Indian law, female sex is no bar
to inherit property. No woman is excluded from
inheritance only on the basis of sex. Women have, like
men, right to inherit property independently, not
merely to receive maintenance or hold property ‘in lieu
of maintenance’. Moreover, every woman who inherits
some property is, like a man, its absolute owner; there
is no concept of either stridhan or a woman’s ‘limited
estate’ reverting to others upon her death.
6. The same scheme of succession applies whether the
deceased was male or a female. This is one of those
salient features of Muslim law of succession which
distinguish it from modern Hindu law of inheritance.’
(Emphasis supplied)
15. The position on devolution of property under
Mohammedan Law has been succinctly captured in
Chapter 22- Law of Succession and Inheritance of
Mulla on Mohammedan Law 5th Edition in the
following terms: “all properties devolve by succession,
so the rights of heirs come into existence only on the
death of the ancestor. The whole property vests in
them.” The Mohammedan Law has well-defined rules
of inheritance that come into effect upon the death of
the ancestor, and its policy has been to restrain the
owner from interfering in such well-defined rules.
Transfer of property if required to be made during the
lifetime of a person, they may do so primarily by way
of gift (hiba). Other methods include the writing of a
will but even therein certain restrictions have been
postulated.
16. Prior to looking to the above said sources, a general
understanding of partition would also be instructive.
Advanced Law Lexicon defined partition as a
separation between joint owners or tenants in common
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of their respective interests in land, and setting apart
such interest, so that they may enjoy and possess the
same in severalty. In Shub Karan Bubna v. Sita Saran
Bubna, partition was defined as under:
‘5. “Partition” is a redistribution or adjustment of pre-
existing rights, among co-owners/coparceners,
resulting in a division of lands or other properties
jointly held by them into different lots or portions and
delivery thereof to the respective allottees. The effect of
such division is that the joint ownership is terminated
and the respective shares vest in them in severalty.
6. A partition of a property can be only among those
having a share or interest in it. A person who does not
have a share in such property cannot obviously be a
party to a partition. “Separation of share” is a species
of “partition”. When all co-owners get separated, it is a
partition. Separation of share(s) refers to a division
where only one or only a few among several co-
owners/coparceners get separated, and others
continue to be joint or continue to hold the remaining
property jointly without division by metes and bounds.
For example, where four brothers owning a property
divide it among themselves by metes and bounds, it is
a partition. But if only one brother wants to get his
share separated and other three brothers continue to
remain joint, there is only a separation of the share of
one brother.’ (Emphasis supplied)
17. Let us now turn to the position as it is under
Mohammedan Law. The right of an heir-apparent
comes into existence for the first time on the death of
the ancestor, and he is not entitled until then to any
interest in the property to which he would succeed as
an heir if he survived the ancestor [See: Mulla
Principles of Mahomedan Law, 22nd Edition, Chapter
6; Abdul Wahid Khan v. Mussumat Noran Bibi & Ors.].
Reference may also be made to the decision of this
case in Gulam Abbas v. Haji Kayyum Ali & Ors.
wherein a bench of three learned judges observed
albeit in connection with renunciation of inheritance as
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under:
‘7. Sir Roland Wilson, in his “Anglo Mohamadan Law”
(p. 260, para 208) states the position thus:
‘For the sake of those readers who are familiar with
the joint ownership of father and son according to the
most widely prevelant school of Hindu Law, it is
perhaps desirable to state explicitly that in
Mohammedan, as in Roman and English Law, emo est
heres viventis………a living person has no heir. An heir
apparent or presumptive has no such reversionary
interest as would enable him to object to any sale or
gift made by the owner in possession; See Abdul
Wdhid, L.P. 12 I.A., 91, and 11 Cal 597 (1885) which
was followed in Hasan Ali, 11 All 456, (1889). The
converse is also true: a renunciation by an exepectant
heir in the lifetime of his ancestor is not valid, or
enforceable against him after the vesting of the
inheritance.” (Emphasis supplied)It is also important to note that the doctrine of partial
partition does not apply to Mohammedan Law as the
heirs therein are tenants-in-common. Succession is to a
definite fraction of the estate in question. A.N. Ray, J.
as his Lordship then was wrote in Syed Shah Ghulam
Ghouse Mohiuddin v. Syed Shah Ahmed Mohiuddin
Kamisul Quadri, as follows:
’20. … In Mohammedan law the doctrine of partial
partition is not applicable because the heirs are
tenants-in-common and the heirs of the deceased
Muslim succeed to the definite fraction of every part of
his estate. The shares of heirs under Mohammedan
law are definite and known before actual partition.
Therefore on partition of properties belonging to a
deceased Muslim there is division by metes and
bounds in accordance with the specific share of each
heir being already determined by the law.’ ”
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42. In view of above, it appears that the plaintiff has
suppressed material facts under clever drafting and as price of
the land escalated, plaintiff with a view to exert pressure upon
the defendants filed suit with flimsy and superficial cause of
action, which is expressly barred by law of limitation and is
incapable of drawing decree. It is just one more attempt by the
plaintiff to dilute and fracture defendants title over suit land.
There is no gain saying that purpose of filing suit under illusory
cause of action is wholly mala fide. Suit is rather a speculative
attempt by plaintiff to disturb the title of suit land taking
recourse of Courts process, which is no less than abuse of
process of law, hence deserve to be nipped in bud.
43. At the cost of repetition it can be said that registered
document provides a complete account of transaction to any
party interested in the property. Hon’ble Apex Court in the case
of Uma Devi (supra), in para 13,14,15 and 17 held as under :-
“13. A registered document provides a complete account of
a transaction to any party interested in the property. This
Court in the case of Suraj Lamp Industries Pvt. Ltd. v. State
of Haryana & Anr. (2012) 1 SCC 656 held 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
the nature and extent of the rights which persons may have,
affecting that property. In other words, it enables people toPage 57 of 60
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find out whether any particular property with which they are
concerned, has been subjected to any legal obligation or
liability and who is or are the person(s) presently having
right, title, and interest in the property. It gives solemnity of
form and perpetuate documents which are of legal
importance or relevance by recording them, where people
may see the record and enquire and ascertain what the
particulars are and as far as land is concerned what
obligations exist with regard to them. It ensures that every
person dealing with immovable property can rely with
confidence upon the statements contained in the registers
(maintained under the said Act) as a full and complete
account of all transactions by which the title to the property
may be affected and secure extracts/copies duly certified”.
14. Applying this settled principle of law, it can safely be
assumed that the predecessors of the plaintiffs had notice of
the registered sale deeds (executed in 1978), flowing from
the partition that took place way back in 1968, by virtue of
them being registered documents. In the lifetime of
Mangalamma, these sale deeds have not been challenged,
neither has partition been sought. Thus, the suit (filed in the
year 2023) of the plaintiffs was prima facie barred by law.
The plaintiffs cannot reignite their rights after sleeping on
them for 45 years.
15. The learned senior counsel for the
defendants/appellants, Mr. Sundaram, relied upon the
decision of this Court in Shri Mukund Bhavan Trust & Ors. v.
Shrimant Chhatrapati Udayan Raje Pratapsinh Maharaj
Bhonsle & Anr. (2024 SCC OnLine SC 3844) to substantiate
the contention that the suit was barred by limitation. It was
observed as follows:
“22. When a portion of the property has been conveyed by
court auction and registered in the first instance and when
another portion has been conveyed by a registered sale deed
in 1952, there is a constructive notice from the date of
registration and the presumption under Section 3 of the
Transfer of Property Act, comes into operation. The
possession, in the present case, also has been rested with
the appellant before several decades, which operates as
notice of title.
23-24. XXX
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25. Continuing further with the plea of limitation, the Courts
below have held that the question of the suit being barred by
limitation can be decided at the time of trial as the question
of limitation is a mixed question of law and facts. Though the
question of limitation generally is mixed question of law and
facts, when upon meaningful reading of the plaint, the court
can come to a conclusion that under the given
circumstances, after dissecting the vices of clever drafting
creating an illusion of cause of action, the suit is hopelessly
barred and the plaint can be rejected under Order VII Rule
11″.
17. In Dahiben v. Arvindbhai Kalyanji Bhanusali (2020) 7
SCC 366, it is stated as under – “The underlying object of
Order VII Rule 11 (a) 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”.
44. In considered opinion of this Court, learned Trial Court
committed serious error much less understanding provisions of
law. Learned Trial Court did not notice that at no point of time,
Gulabibi asserted her right or objected transactions and plaintiff
having constructive knowledge did not challenge the same in
prescribed time period. Plaintiff filed collusive suit in form of
Regular Civil Suit No.136 of 2015 to disturb title of defendants
and thereby filed suit vexatiously under clever drafting.
Therefore, it was duty of the learned Trial Court to nip in bud
such suit at threshold.
45. Considering facts of the present case, the judgments cited
by learned advocate Ms.Shah for the respondent would not
render any assistance to her case.
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46. In aforesaid premises, it is held that suit filed by the
plaintiff is barred by law of limitation. Consequently, all the
Revision Applications are allowed. Impugned orders are quashed
and set aside. Applications filed under Order 7 Rule 11 of CPC to
reject plaint is allowed. Consequently, the plaints are rejected.
Learned Trial Court is directed to pass consequent order
below Exh.1 in suit proceedings. Rule is made absolute to the
aforesaid term in each matter.
Registry to maintain copy of this order in each matter.
(J. C. DOSHI,J)
After pronouncement of judgment, learned advocate
Ms.Shah for the respondent requests to stay the execution and
implementation of the present judgment for four weeks.
Considering aforesaid reasons, the request is rejected.
(J. C. DOSHI,J)
SATISH
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