9911796707
TMI Blog2018 (4) TMI 1899X X X X Extracts X X X X X X X X Extracts X X X X ..... r), deceased Bawamiya Kamaluddin Saiyed, bearing Survey No. 113/1+2, area H.1-37-59 Ara, Akar Rs. 15-81 paise. That land is old tenure agricultural land situated at Mouje Village, Hadgud Taluka and District Anand. The said ancestral, joint, undivided land was jointly possessed and used and enjoyed by the Appellants (Plaintiffs) and original Defendant Nos. 1 & 2 (predecessors of Respondent Nos. 2 to 15), after the demise of their father Bawamiya Kamaluddin Saiyed, being in his straight line of heirs. The names of Jahangirmiya Bawamiya Kamaluddin Saiyed and Hussainmiya Bawamiya Kamaluddin Saiyed (original Defendant Nos. 1 & 2 respectively) came to be recorded in the record of rights along with the names of the Appellants and since that time, all of them were jointly in possession and usage of the undivided land. The Appellants assert that they have half (1/2) share, rights, powers, possession and usage rights in the property. It is their case that without their knowledge the original Defendant Nos. 1 & 2 transferred the said land after forging their (Appellants) signatures. The Appellants were not aware about the said transaction effected vide registered sale deed No. 4425 dated 18th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e plaint, the Appellants have stated about the cause of action for filing the suit in the following words: 6. The cause as to the filing of the suit, as mentioned under the above mentioned paragraph pertains to the fact that the Respondents Nos. 1 and 2 without the knowledge of the applicants, while keeping the applicant in dark, removed the name of the applicants from the record of rights and entered into a registered sale deed No. 4425 dated 18.10.1996 without the knowledge of the applicants. Upon getting the above mentioned knowledge, the applicants meet the Respondents personally before two days and requested them to cancel the sale deed and hand over the clear, marketable and actual vacant possession of the property to the applicants. Yet the Respondents did not consider the request and mentioned that the courts are open for us thereby asking us the applicants to do whatever we wished to do. Therefore the present issue has arise at the village Hadgud without the jurisdiction of the honourable court. 4. As mentioned above, the suit came to be filed for declaration and permanent injunction and for the following reliefs: a) The honourable court be pleased to declare that the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ral. e) The honourable court be pleased to pass a permanent injunction order against the Respondents and in the favour of the applicants such that, neither the Respondents nor through their agents, servants, persons, etc. would alter the record of rights entries for the property mentioned under the paragraph No. 1 and situated at the Mouje village Hadgud, Taluka and district Anand, survey No. 113/1+2, area Heacter 1-37-59 Ara, Akar Rs. 15-81 Paise old tenure agricultural. f) The honourable court be pleased to pass an appropriate order found proper and efficacious by the honourable court. g) The honourable court be pleased to order the Respondents to provide for the cost as the suit. 5. After filing of the suit, an application was filed on 19th November, 2014 under Orders XIII and XVI of the Code of Civil Procedure, 1908 (for short "CPC") read with Sections 67 and 71 of the Evidence Act for directions to Defendant Nos. 3 to 6 to produce before the Court, the original deed executed by the original Defendant Nos. 1 & 2 in respect of the suit land and to obtain the admitted thumb impressions of the Appellants and send it for scientific examination and comparison of the thumb imp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ether there is delay of almost 17 years in filling this suit or not and whether it is barred by law of limitation or not, it is subject matter of trial and moreover, the other submissions of Ld. Advocate for Defendant No. 5 regarding no prima facie case in favour of Plaintiff also cannot be considered as these are also the subject matter of trial which can be decided only after taking the evidence. Moreover, at the time of deciding the application under order 7 Rule 11 the Court has to just look into the averments made in plaint only and the plea or defense raised by Defendant cannot be taken into account at the stage of deciding the application Under Order 7 Rule 11 and here in this case merely looking to the pleading in the plaint it does not come out that the suit barred by law of limitation. Moreover, I am of humble view the case law cited by Ld. Advocate for Plaintiffs reported as 2015 (1) GLH 1, fully support to the case in hand. Moreover, I am of humble view that, the case cited by Ld. Advocate for Defendant reported in 2015(2) GLH 355 and 2013 (1) GLR 398, does not support in the present case as the factual position of these cases and present case are different. 7. Respond ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ve been brought also point out that the Plaintiffs' suit is barred by law of limitation for having been preferred after expiry of three years period. It is to be noted that even during the course, when revenue authority mutated the names of present revisionist and other Respondents, no objection came to be raised and it is almost after 18 years, such objections have surfaced. 8. The aforementioned decision of the High Court is the subject matter of this appeal at the instance of the Appellants (Plaintiffs). According to the Appellants, the High Court committed manifest error in being swayed away by the fact that the suit was filed after about 17 years. It has proceeded on the basis of assumptions and surmises and not in consonance with the limited sphere of consideration at the threshold stage for examining the application for rejection of the plaint in terms of Order VII Rule 11(d) of Code of Civil Procedure. It has not even bothered to analyse the relevant averments in the plaint which, it is well settled, has to be read as a whole and has also not adverted to the reasons recorded by the Trial Court that the factum of suit being barred by limitation was a triable issue in th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o decide the application Under Order VII Rule 11(d). Only the averments in the plaint are germane. It is common ground that the registered sale deed is dated 18th October, 1996. The limitation to challenge the registered sale deed ordinarily would start running from the date on which the sale deed was registered. However, the specific case of the Appellants (Plaintiffs) is that until 2013 they had no knowledge whatsoever regarding execution of such sale deed by their brothers-original Defendant Nos. 1 & 2, in favour of Jaikrishnabhai Prabhudas Thakkar or Defendant Nos. 3 to 6. They acquired that knowledge on 26.12.2012 and immediately took steps to obtain a certified copy of the registered sale deed and on receipt thereof they realised the fraud played on them by their brothers concerning the ancestral property and two days prior to the filing of the suit, had approached their brothers (original Defendant Nos. 1 & 2) calling upon them to stop interfering with their possession and to partition the property and provide exclusive possession of half (1/2) portion of the land so designated towards their share. However, when they realized that the original Defendant Nos. 1 & 2 would not ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Under Order 7 Rule 11 Code of Civil Procedure cannot but be procedural irregularity touching the exercise of jurisdiction by the trial court. It is clear that in order to consider Order 7 Rule 11, the court has to look into the averments in the plaint and the same can be exercised by the trial court at any stage of the suit. It is also clear that the averments in the written statement are immaterial and it is the duty of the Court to scrutinise the averments/pleas in the plaint. In other words, what needs to be looked into in deciding such an application are the averments in the plaint. At that stage, the pleas taken by the Defendant in the written statement are wholly irrelevant and the matter is to be decided only on the plaint averments. These principles have been reiterated in Raptakos Brett & Co. Ltd. v. Ganesh Property and Mayar (H.K.) Ltd. v. Vessel M.V. Fortune Express. 15. The High Court has adverted to the case of Church of Christ Charitable Trust and Educational Charitable Society (supra), which had occasion to consider the correctness of the view taken by the High Court in ordering rejection of the plaint in part, against one Defendant, on the ground that it did not ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
