1.0 Present Civil Revision Application under Section 115 of the Code of Civil Procedure has been preferred by the petitioners herein original defendants no. 3 and 4 to quash and set aside the impugned order passed by the learned 10th Additional Senior Civil Judge, Vadodara passed below Exh.14 passed in Regular Civil Suit No.694 of 2010, by which, the learned trial Court has dismissed the said application preferred by the petitioners hereinoriginal defendants no. 3 and 4 which was submitted to reject the plaint in exercise of powers under Order 7 Rule 11 (d) of the Code of Civil Procedure on the ground that the suit is exfacie barred by law of limitation.
2.0 That the respondent nos.1.1 to 1.4 original plaintiffs have instituted Regular Civil Suit No.694 of 2010 against the petitioners hereinoriginal defendants no. 3 and 4 and others in the Court of learned Civil Judge (S.D.), Vadodara for declaration to declare that the sale deed dated 25.8.1975 executed by the original defendant no.1 in favour of the petitioners herein original defendants no. 3 and 4 as illegal and void. It appears from the averment in the plaint that it is the case of the original plaintiffs that the suit land in question was in the name of father of the plaintiffs Shivabhai Kashibhai pursuant to mutation entry no. 50 dated 9.12.1953. It is further averred in the plaint that thereafter father of the defendants no.1 and 2 Chottabhai Bhagwanbhai who was at the relevant time Sarpanch got his name mutated in the revenue record vide mutation entry no.245. It is further averred in the plaint that thereafter on the death of said Chottabhai Bhagwanbhai on 11.10.1979 the name of defendant no.1 Vasantlal Chotalal was mutated in the revenue record vide mutation entry No.1024 dated 24.9.1971 as heir and legal representatives of Chottabhai Bhagwanbhai which was illegal. It is averred in the plaint that such mutation entry was made without any notice served upon the plaintiff as required under Section 135 D of the BLRC. It is further averred in the plaint that thereafter original defendant no.1 Vasant Chottabhai executed registered sale deed dated 25.8.1975 in favour of original defendants no. 3 and 4 petitioners herein and name of defendant nos. 3 and 4 have been mutated in the revenue record. It is further averred in the plaint that thereafter land bearing survey nos.374 and 569 gone into the share of defendant no.3 Becharbhai Zaverbhai Patel and land bearing survey Nos.380 and 127/1 had gone in the share of original defendant no.4. Ambalal Zaverbhai Patel and necessary mutation entries have been made in revenue record vide mutation entry no.1283 dated 10.6.1981 and the land bearing survey no. 380 in the name of Ambalal Patel. Therefore, it is the case of the plaintiffs that registered sale deed 25.8.1975 in favour of defendants no. 3 and 4 is illegal from the very beginning and though the father of the plaintiffs was having the right pursuant to the order passed by the revenue authority, without consent of the father of the plaintiffs aforesaid sale deed has been executed. It is submitted that therefore, the plaintiffs have instituted aforesaid suit as such to set aside the registered sale deed dated 25.8.1975 which was executed by the original defendant no.1 in favour of original defendants no. 3 and 4. In the plaint, the original plaintiffs have submitted the cause of action in para 8 and it is mentioned that as soon as plaintiffs came to know about the transaction dated 25.8.1975, they obtained the certified copy of the sale deed from the office of sub Registrar on 16.6.2010 and thereafter when plaintiffs contacted the defendants and point out the defendants about the illegal transaction, the defendants become angry and threatened that they will sale suit property in favour of other persons and therefore, it is alleged that cause of action has arisen to file the suit. By making above averments in the plaint original plaintiffs have instituted the suit for declaration challenging the registered sale deed dated 25.8.1975 executed by the original defendant no.1 in favour of defendants no. 3 and 4 (petitioners herein).
2.1. Having served with the summons / notice of the aforesaid suit, the petitioners hereinoriginal defendants no. 3 and 4 submitted the application Exh.14 under Order 7 Rule 11(d) of the Code of Civil Procedure requesting to reject the plaint on the ground that even considering the averments in the plaint as it is suit is clearly barred by law of limitation and same has been preferred after a period of 35 years of the registered sale deed and therefore, it was requested to reject the plaint under Order 7 Rule 11(d) of the Code of Civil Procedure. That learned trial Court by impugned order dated 4.7.2011 has dismissed the said application and has refused to reject the plaint under Order 7 Rule 11 (d) of the Code of Civil Procedure by observing that as per the decision of the Hon'ble Supreme Court while considering the application under Order 7 Rule 11(d) of the Code of Civil Procedure the Court is required to consider the averments in the plaint and supporting documents produced along with plaint and considering the averments in the plaint and the cause of action pleaded, prima facie it cannot be said that the suit is barred by law of limitation and consequently learned trial Court dismissed the said application.
2.2. Being aggrieved and dissatisfied with the impugned order passed by the learned trial Court dated 4.7.2011 passed below Exh.14 in Regular Civil Suit No. 694 of 2010 by which the learned trial Court has dismissed the said application and refused to reject the plaint under Order 7 Rule 11 (d) of the Code of Civil Procedure, the petitioners herein original defendants no. 3 and 4 have preferred present Civil Revision Application under Section 115 of the Code of Civil Procedure.
3.0 Shri Nilesh Pandya, learned advocate for the petitioners has vehemently submitted that the learned trial Court has materially erred in not rejecting the plaint under Order 7 Rule 11(d) of the Code of Civil Procedure. It is further submitted that even considering the averments in the plaint as they are suit is clearly barred by law of limitation. It is submitted that in the plaint the plaintiffs have challenged the registered sale deed dated 25.8.1975 after a period of 35 years and even mutation entries were made in the revenue record on the basis of the said registered sale deed immediately, learned trial Court ought to have held that the suit is clearly barred by law of limitation. Shri Nilesh Pandya, learned advocate for the petitioners relying upon the decision of the Hon'ble Supreme Court in the case of Dilboo (Smt)(Dead) By Lrs & Anr vs. Dhanraji (Smt)(Dead) and Others reported in (2000)7 SCC 702 has submitted that as document/ sale deed dated 25.8.1975 was a registered sale deed and even mutation entries were made in the revenue record on the basis of such registered sale deed, the plaintiff is deemed to have knowledge about the transaction and therefore, learned trial Court ought to have held that the suit is clearly barred by law of limitation and thereby ought to have rejected the plaint. It is further submitted by Shri Nilesh Pandya, learned advocate for the petitioners that even the cause of action pleaded in the plaint is absolutely vague and nothing has been mentioned on which date plaintiffs came to know about the transaction between the original defendant no.1 and defendants no. 3 and4 dated 25.8.1975. It is submitted by Shri Pandya, learned advocate for the petitioners original defendants no. 3 and 4 that even in the plaint there are no averments with respect to limitation. It is submitted that learned trial Court has not properly appreciated the fact that by cleaver drafting the suit which is otherwise barred by law of limitation cannot be permitted to be brought within the period of limitation. Making above submission and relying upon the aforesaid decision, it is requested to allow the present Civil Revision Application.
4.0 Present Civil Revision Application is opposed by Shri Ashtavadi, learned advocate for the respondent no. 1 original plaintiff. It is submitted that considering the cause of action pleaded in the plaint in which it has been specifically mentioned that as soon as plaintiffs came to know about the illegal transaction dated 25.8.1975 immediately they got the copy of the sale deed from the office of sub Registrar on 16.6.2010 and immediately they contacted the defendants and they became angry and immediately thereafter the suit has been filed, the learned trial Court has not committed any error and / or illegality in observing that prima facie it cannot be said that the suit is barred by law of limitation. It is submitted that the learned trial Court has rightly observed that while considering the application under Order 7 Rule 11(d) of the Code of Civil Procedure, the Court is required to consider the pleadings and averments in the plaint only and the supporting documents produced along with plaint only and on that Court is not required to consider other documents. Relying upon the decision of the Hon'ble Supreme Court in the case of Balasaria Construction (P)Ltd vs. Hanuman Seva Trust and others reported in (2006) 5 SCC 658, it is requested to dismiss the present Civil Revision Application.
5.0 Heard the learned advocates for the respective parties at length and considered the averments in the plaint and impugned order passed by the learned trial Court.
6.0 At the outset, it is required to be noted that in the plaint the original plaintiffs have challenged the registered sale deed dated 25.8.1975 which has been executed by the original defendant no.1 in favour of defendants no. 3 and 4 and the said suit has been filed in the year 2010 i.e. after a period of 35 years. It is also required to be noted and even so pleaded / averred in the plaint that name of father of the defendant no.1 was mutated in the revenue record and even thereafter on the death of father of the defendants no.1 and 2 Chottabhai Bhagwanbhai mutated in the revenue record on 11.10.1979 vide mutation entry no.1024. It is also further averred in the plaint that even the name of defendants no. 3 and 4 were also mutated in the revenue record pursuant to the sale deed dated 25.8.1975 vide entry no.1115 and not only that even in 1981 there was partition between defendants no. 3 and 4 and the land bearing Survey No.380 (disputed suit land) has gone into the share of Ambalal Patel defendant no.4 and his name is mutated in the revenue record vide mutation entry no.1283 dated 10.6.1981. Even considering cause of action pleaded in the plaint in para 8, it appears to the Court that the averments in the plaint are too vague and nothing has been mentioned in the said para on which date he came to know about the registered sale deed dated 25.8.1975. Even in the entire plaint nothing has been pleaded with respect to limitation. Mere cleaver drafting in the plaint and by such vague averments and the pleading the cause of action in the plaint, the suit which is otherwise barred by law of limitation can not be brought within a period of limitation.
6.1. It is not disputed that while considering application under Order 7 Rule 11 (d) of the Code of Civil Procedure, the Court is required to consider the averments in the plaint and the supporting documents produced along with plaint. However, it cannot be disputed that if on the face of it and even considering the averments made in the plaint, it is found that the suit is clearly barred of law of limitation, the plaint can be rejected in exercise of powers under Order 7 Rule 11 (d) of the Code of Civil Procedure. Even considering the decision of the Hon'ble Supreme Court in the case of N.V.Srinivasan Murthy vs. Mariyamma (Dead) by proposed Lrs reported in AIR 2005 SC 2897 as well as decision of the Hon'ble Supreme Court in the case of Dilboo (Smt) (Dead) Bij lea (supra), the plaint can be rejected in exercise of powers under Order 7 Rule 11(d) of the Code of Civil Procedure if it is found that even accepting all the averments made in the suit, it is found therefore, the suit is barred by law limitation. Considering the above proposition of law laid down by the Hon'ble Supreme Court, it is required to be considered whether considering facts and circumstances of the present case and even considering averments made in the plaint and even accepting all the averments made in the plaint as they are, whether the suit is barred by law of limitation or not ?
6.2. As stated above, registered sale deeds was executed by the original defendant no.1 in favour of original defendants no. 3 and 4 (petitioners herein) on dated 25.8.1975. It is also required to be noted and even so pleaded / averred in the plaint that mutation entry in favour of defendant nos. 3 and 4 on the basis of registered sale deed was made in the revenue record vide entry no.1115 and not only that even in 1981 there was partition between defendants no. 3 and 4 and the land bearing Survey No.380 (disputed suit land) has gone into the share of Ambalal Patel defendant no.4 and his name is mutated in the revenue record vide mutation entry no.1283 dated 10.6.1981.As held by the Hon'ble Supreme Court in the case of Dilboo (Smt) (Dead) Bij lea(supra) whenever the document is registered the date of registration becomes the date of deemed knowledge and in other cases where a fact could be discovered by due diligence then deemed knowledge would be attributed to the plaintiff because a party cannot be allowed to extend the period of limitation by merely claiming that he had no knowledge. Thus when the sale deed dated 25.8.1975 was registered in the year 1975 itself and even the mutation entry was made in favour of defendants no.3 and 4 on the basis of the registered sale deed immediately thereafter the plaintiff is deemed to have the knowledge of the said transaction and by making such vague averments in the plaint that earlier he had no knowledge and he came to know about the transaction only in the 2010, by such clever drafting the plaintiff cannot be permitted to bring the suit within the period of limitation which otherwise is barred by law of limitation as the suit challenging the registered sale deed dated 25.8.1975 has been filed after a period of 35 years. Under the circumstances and considering the aforesaid, it appears to the Court that learned trial Court has materially erred in rejecting the application Exh.14 and in not rejecting the plaint exercising the power under Order 7 Rule 11(d) of the Code of Civil Procedure. Under the circumstances, the impugned order passed by the learned trial Court cannot be sustained and same deserves to be quashed and set aside.
6.4. Now, so far as the decision of the Hon'ble Supreme Court in the case of Balasaria Construction (P)Ltd (supra) relied upon by the learned advocate for the original plaintiffs, as stated above it cannot be disputed that while considering application under Order 7 Rule 11(d) of Code of Civil Procedure at that stage the Court is required to consider the averments in the plaint and supporting documents produced along with plaint only. However, considering the facts and circumstances of the case and as stated above even considering the averments and the pleadings in the plaint as they are, the suit is clearly barred by law of limitation. Under the circumstances, the impugned order passed by the learned trial Court deserves to be quashed and set aside.
7.0. In view of the above and for the reasons stated above, present Civil Revision Application succeeds. The impugned order dated 4.7.2011 passed by the learned 10th Additional Senior Civil Judge, Vadodara passed below Exh.14 passed in Regular Civil Suit No.694 of 2010 is hereby quashed and set aside and consequently said application at Exh.14 submitted by the defendants no. 3 and 4 to reject the plaint in exercise of powers under Order 7 Rule 11(d) of the Code of Civil Procedure is hereby allowed and consequently the plaint is ordered to be rejected as the same is barred by law of limitation. Rule is made absolute to the aforesaid extent. No costs.
sd/ ( M. R. Shah, J. ) kaushik