Masrur Fatema Jafarali Saiyed v. Vishnubhai Ambalal Patel

M.R Shah, J.:— Feeling aggrieved and dissatisfied with the impugned common order dated 18.11.2014 passed below Exhs. 62 to 67, 104 to 109, 114 to 116, 121 to 128, 144 to 147 and 150 applications in Special Civil Suit No. 79 of 2008 by the learned 10th Additional Senior Civil Judge, Surat (hereinafter referred to as the “learned trial Court”) by which, the learned trial Court has allowed the said applications and has rejected the plaint under Order VII Ruled 11(d) of the Code of Civil Procedure, 1908, the original plaintiffs no. 1 to 3 have preferred present First Appeal.

2. The facts leading to the present First Appeal in nutshell are as under:

3. That the dispute is with respect to land bearing revenue survey no. 506 admeasuring 2814.28 acres part of old revenue survey no. 400 situated at village Athwa, Taluka: Choriyashi, District and Sub-District Surat.

4. That the appellants herein original plaintiffs 1 to 3 (hereinafter referred to as the original plaintiffs no. 1 to 3 herein) -respondent nos. 41 to 45 herein - original plaintiffs no. 4 to 8 filed Special Civil Suit No. 79 of 2008 before the learned trial Court for a declaration that transactions/conveyances/sale deeds/decrees obtained by and in favour of the defendants, qua the suit land are by fraud, therefore, illegal and not binding to the plaintiffs. It was also further prayed that original defendants do not get any right on the basis thereof. Alternatively, it was prayed that if the Hon'ble Court comes to the conclusion that the plaintiffs are not in possession of the suit land, then the possession may be restored from the defendants to the plaintiffs. A declaration was also sought that defendants have no right and/or authority entered into any transaction with respect to the suit land on the basis of the transaction in their favour. Permanent injunction was also sought against the original defendants from transferring and/or alienating the suit land in any manner whatsoever.

5. It was the case on behalf of the original plaintiffs that transaction in favour of the defendants are by playing fraud and behind the back of the plaintiffs and/or heirs of the Nawab of Baroda Meer Naruddin Husainuddin s/o Husainuddin Husainkhan. It was averred by the original plaintiffs in the plaint that in 1820 the suit land was granted as Inam to Nawab of Baroda Meer Naruddin Husainuddin s/o Husainuddin Husainkhan.

6. It was averred that after the death of Niruddin Husainkhan one Vali Unisha Begum filed Regular Civil Suit No. 76 of 1886 for administration of properties of the Nawab. That the said suit was decreed. It was held that Rule of Primogeniture do not apply and the suit land can be partitioned and inherited.

7. That the judgment and decree passed in Regular Civil Suit No. 76 of 1886 was challenged by way of appeal before the Bombay High Court, which came to be dismissed with some minor modification.

8. It was further averred that pursuant to the decree passed by the Court passed in Regular Civil Suit No. 76 of 1986, the Assistant Deputy Collector, Village Choryashi, District Surat, Shri. A.D Brown effected partition and division amongst 10 adjudged sharers from the family of Nawab of Baroda. By the passage of time, there was a survey and the lands were given through new re-survey nos. 505, 506 and 507 out of which revenue survey no. 506 admeasuring 2814.28 acres is subject matter of suit.

9. It was further averred that land bearing survey no. 400 was Khar land and therefore, agriculture activity was not possible and no revenue was required to be paid and despite the fact that judgment and decree passed in Civil Suit No. 76 of 1886 was executed by the Assistant Collector, Choriyashi, names of heirs of Nawab were not mutated in the revenue record.

10. That thereafter, at the time of second survey there was no measurement of Khar land and subsequently the same was included and the old revenue survey no. 400 was divided into three parts which were given survey nos. 500, 501 and 502 however, subsequently which was given new survey nos. 505, 506 and 507 out of which revenue survey no. 506 admeasuring 2814.28 acres is the subject matter of the suit.

11. It was further averred that in the year 1952 some of the heirs of Nawab of Vadodara executed four different lease deed with respect to land bearing revenue survey no. 506 in favour of original defendant no. 6 Bapusaheb Bajirao Savant. However, the original defendant no. 6 Bapusaheb Bajirao Savant could not make the land cultivable and therefore, the lease deeds were put to an end in the year 1955-1956.

12. It was further averred that despite the above, heirs of Bapusaheb Bajirao Savant-original defendants no. 6.1 to 6.12 filed the Civil Suit in the Court of learned Civil Judge, Surat in the year 1969 against the alleged heirs of Nawab and four different Civil Suits were filed being Special Civil Suit Nos. 23 of 1972 to 26 to 1972 in which real heirs of the Nawab were deleted and consent terms were produced to show that original defendant nos. 1 to 4 have been sold suit land by the heirs of the Nawab and all the aforesaid suits with respect to the land admeasuring 1673 acres came to be decreed and the balance land admeasuring 1138 acres was shown to be leased in favour of one Ashwin and Brothers. Thus, the original defendant nos. 1 to 7 played fraud with the Court and obtained consent decree with respect to the land admeasuring 2814.28 acres out of the land bearing Revenue Survey No. 506. It was further averred that as the consent decree were obtained by fraud, the same were not required to be challenged.

13. It was further averred that subsequently the mutation proceedings were initiated. Mutation entry nos. 496, 497, 498, 499, 500 and 501 were made recording the sale deeds in favour of defendants no. 1 to 4, which were subsequently not certified and cancelled by the order dated 15.07.1971

14. It was further averred that in the intervening period, in Inquiry Case No. 2 of 1972, the Mamlatdar, Choryashi, vide order dated 5.4.1974 declared the suit land and the other lands of Nawab as Government Kharaba land.

15. It was further averred that the aforesaid order passed by the Mamlatdar was challenged before the Gujarat Revenue Tribunal. It was submitted that vide order dated 8.4.1976 the Gujarat Revenue Tribunal quashed the order of the Mamlatdar and held that the suit land was of the private ownership of Nawab of Baroda and his adjudged heirs and representative (including the plaintiffs). It was submitted that mutation entry no. 591 came to be mutated recording the names of defendants no. 1 to 4 in the revenue records on the basis of the registered sale deeds though the names of Nawab of Baroda and his heirs and adjudged sharers ought to have been recorded.

16. It was further averred that subsequently the defendant nos. 1 to 4 sought mutation of names of 64 persons, as per Memorandum of Agreement dated 18.08.1969 It is further submitted that therefore, on 09.12.1976 mutation Entry No. 594 came to be mutated.

17. It was further averred that thereafter in the year 1985 to 1995 the defendant no. 8 purchased approximately 1603 acres of land by executing 20 sale deeds fom 67 persons, whose names were mutated vide mutation entry no. 594. It was submitted that the purchase by the defendant no. 8 also includes, one such collusive and fraudulent conveyance/transaction, in favour of the defendant no. 8. It was further submitted that the said conveyance/transaction is a collusively and fraudulently executed in pursuance to consent decree before the Hon'ble High Court of Bombay, which resulted in mutation entry no. 987. The said transaction was entered into by Balwantrai B Vyas in whose favour mutation entry no. 861 was made and ultimately vide order dated 31.12.1989, the same was cancelled by the Assistant Collector, Choriyashi.

18. It was further averred that the order passed by the Assistant Collector, quashing mutation entry no. 861 was also challenged before this Court in Special Civil Application No. 6511 of 1990 and the same was allowed by this Court on the ground of jurisdiction.

19. It was further averred that subsequently on 5.11.1997 the Collector, Surat took several entries in suo motu revision. It was submitted that the same was challenged before the Special Secretary, Revenue Department (Appeals). It was submitted that in the said proceedings vide order dated 30.03.2002 the Special Secretary, Revenue Department (Appeals) remanded the matter back to regularize the illegality. It was submitted that against the same Special Civil Application Nos. 8848 of 2002, 8852 of 2002, 598 of 2003 and 5069 of 2003 were preferred before this Court. The said petition along with the Civil Application Nos. 2511 of 2003, 2917 of 2004, 11711 of 2005, 2513 of 2003, 2918 of 2004, 11697 of 2005, 11213 of 2005 and 10313 of 2007 came to be decided by the judgment dated 08.08.2007, inter alia, holding that the mutation entries are legal since the proceedings against the same are grossly delayed. It was submitted that moreover, it was clarified that this Court did not pronounce issue of ownership which is an independent issue and can always be raised/agitated in the Court of competent jurisdiction by filing appropriate proceedings. It was submitted that this Court further clarified that as and when right, title and claim is agitated before a Competent Civil Court, it will be open for the parties concerned to contest the same on all pleas available under the law, including the plea of limitations. It was further submitted that the plaintiffs were parties in the said proceedings having filed Civil Application No. 11711 of 2005. It was submitted that against the order passed in Special Civil Application NO. 8848 of 2002 and other allied matter, the State Government preferred Special Leave Petition No. 14639 to 14641 of 2013 and the same are also dismissed.

20. It was further averred that during the pendency of the aforesaid proceedings before this Court, on 11.06.2007 insufficient stamp duty on the agreement dated 18.08.1969 resulting in Mutation Entry No. 594 was deposited. It appears that during the pendency of the said proceeding, Special Civil Suit No. 336 of 2001 was filed inter-se dispute amongst heirs of son of Nawab.

21. It was further averred that moreover, Special Civil Suit No. 388 of 2006 was filed by one Saiyed Rashidakhatun daughter of Tassaduk Hussain and wife of Saiyedali Saiyed having purchased 764.28 acres-gunthas part from new survey no. 506. It was further averred that moreover the defendant no. 8 also filed Special Civil Suit No. 143 of 2007 against the plaintiffs of Special Civil Suit No. 388 of 2006 i.e Saiyed Rashidakhatun daughter of Tassaduk Hussain and wife of Saiyedali Saiyed Ahmed.

22. That thereafter, in the year 2008, the original plaintiffs instituted Special Civil Suit No. 79 of 2008 for the aforesaid reliefs with respect to land bearing old survey no. 506 admeasuring 2814.20 acres for the aforesaid declaration. That in the said suit, initially only 8 defendants were joined as defendant. However subsequently the application was given by the plaintiffs to join subsequent purchaser/purchasers of the land.

23. That thereafter, the original defendants of the suit as well as proposed defendants submitted the applications Exh. 62 to 67, 104 to 109, 114 to 116, 121 to 128, 144 to 147 and 150 requesting to reject the plaint under Order VII Rule 11(d) of the Code of Civil Procedure and other provisions of the Code on the ground that the suit is barred by law of limitation.

24. It was the case on behalf of the original defendants as well as proposed defendants that the sale in favour of the original defendant no. 8 had come to the knowledge of the plaintiffs at least on 1.11.2004 when they preferred Civil Application No. 11711 of 2005 before this Court and therefore, the aforesaid sale came to their notice in the year 2004, however suit has been preferred in the year 2008 which is beyond the period of three years. It was further stated on behalf of the defendants that plaintiffs have stated in para 10 of the plaint that cause of action had arisen in the year 1969 when the defendants no. 1 to 4 got sale deed registered and the suit has been filed after a period of 38 years and therefore, from the date of registration considering the same as deemed date of knowledge, the suit is clearly barred by law of limitation.

25. It was further the case on behalf of the defendants that the plaintiffs have entered into partnership agreement on 23.01.2002 with one Bharat Keshubhai Unadkat. That on perusal of the said agreement, it appears that litigation is financed by a third party and the intention of the plaintiffs and their partner is to extort money only.

26. That the aforesaid applications were opposed by original plaintiffs. It was the case on behalf of the plaintiffs that as the original defendants no. 1 to 4 got the sale deeds in their favour by playing fraud and got sale deed registered in their favour and in presence of real heirs of the Nawab and subsequently plaintiffs came to know about the facts when they filed Civil Application No. 11711 of 2005 in the High Court. It was submitted that the matter was finally decided by the High Court on 08.08.2007 and the Hon'ble High Court gave right to sue for their civil rights and thereafter, the plaintiffs instituted the aforesaid suit for declaration, injunction and for cancellation of the sale deed etc. Therefore, the original plaintiffs pleaded that the cause of action has arisen after the order of the High Court passed in the year 2007. Therefore, it was submitted that the suit is not barred by law of limitation.

27. That thereafter, after considering the submissions made on behalf of the rival partes and observing that plaintiffs had knowledge of the disputed sale deeds and other revenue proceedings and other proceedings in respect of the suit property on 1.11.2004 and thereafter they have instituted the suit in the year 2008 i.e beyond period of three years and therefore, the suit is barred by law of limitation. Therefore, by impugned common order learned trial Court has allowed the application Exhs. 62 to 67, 104 to 109, 114 to 116, 121 to 128, 144 to 147 and 150 and has rejected the plaint under Order VII Rule 11(d) of the Code of Civil Procedure. Consequently, learned trial Court has passed order below Exh.1 and has rejected the plaint.

28. Feeling aggrieved and dissatisfied with the impugned common order passed by the learned trial Court in rejecting the plaint under Order VII Rule 11(d) of the Code of Civil Procedure, the original plaintiffs no. 1 to 3 have preferred present First Appeal.

29. Shri. Mihir Thakore, learned Senior Advocate has appeared with Shri. MTM Hakim, learned advocate for the appellants no. 1 to 3 herein - original plaintiffs no. 1 to 3. M/s. Wadia Ghandy and Co. Advocate, Shri. Ankit Shah, learned advocate, Shri. Ashish Dagli, learned advocate, Shri. Bharat Jani, learned advocate, Shri. Sandip M. Patel, learned advocate and Ms. V.D Nanavati, learned advocate have appeared on behalf of respective original defendants. Rest of the defendants are served but none appears for them.

30. Shri. Mihir Thakore, learned counsel for the original plaintiff nos. 1 to 3 has vehemently submitted that in the facts and circumstances of the case the learned trial Court has materially erred in rejecting the plaint under Order VII Rule 11(d) of the Code of Civil Procedure.

31. It is further submitted by Shri. Thakore, learned counsel for the original plaintiffs no. 1 to 3 that learned trial Court has erred in applying the principles to decide applications under Order VII Rule 11 of the Code of Civil Procedure as for deciding the same, the averments in the plaint alone are required to be seen, whereas while passing impugned order the learned trial Court has considered the other documents and the pleadings and submissions of the defendants. It is submitted that as per catena of decisions of the Hon'ble Supreme Court the plaint alone is required to be seen. It is submitted that therefore, the impugned order passed by the learned trial Court cannot be sustained. In support of his above submissions, he has relied upon following decision of the Hon'ble Supreme Court:

(1). Hardesh Ores (P) Ltd. v. Hede And Company reported in (2007) 5 SCC 614

(2). Ramesh B Desai v. Bipin Vadilal Mehta reported in (2006) 5 SCC 638

(3). Commissioner of Income Tax, Bhopal v. G.M Mittal Stainless Steel (P) Ltd. reported in (2003) 11 SCC 441

(4). Church of Christ Chartitable Trust and Educational Charitable Society v. Ponniamman Educational Trust reported in (2012) 8 SCC 706

32. It is further submitted by Shri. Thakore, learned counsel for the original plaintiffs no. 1 to 3 that the Order VII Rule 11 is required to be given strict construction. It is submitted that therefore, the plaint is liable to be rejected on clear and concluded findings without any further inquiry or trial, then and then only the plaint can be rejected under Order VII Rule 11 of the Code of Civil Procedure. It is submitted that in case, from the pleadings in the suit, there is any such need for further inquiry and trial, the plaint cannot be rejected under Order VII Rule 11 of the Code of Civil Procedure. In support of his above submissions, learned counsel of the original plaintiffs has heavily relied upon the following decisions of the Hon'ble Supreme Court.

(1) Ram Prakash Gupta v. Rajiv Kumar Gupta reported in (2007) 10 SCC 59

(2) Vishnu Dutt Sharma v. Daya Sapra (Smt)..) reported in (2009) 13 SCC 729

33. It is further submitted by Shri. Thakore, learned counsel for the original plaintiffs that as per the settled proposition of law, the plaint cannot be rejected. It is submitted that even part of the plaint cannot be rejected. It is submitted that the registered sale deeds of the year 1969 are only qua 1673 acres of land out of 2814.28 acres of land of survey no. 506. It is submitted that for the remaining 1138 acres, there is no sale deeds and conveyance deeds. It is submitted that therefore, neither any knowledge and/or notice qua the said land admeasuring 1138 acres could be alleged to the plaintiffs.

34. It is further submitted that moreover the plaintiffs have also claimed relief of restoration of possession, in case the Court holds that the plaintiffs are not in possession. It is submitted that therefore, Article 65 of the Limitation Act for the said relief of restoration of possession, which is 12 years, would be applicable to that part of cause of action and relief and consequently the suit would not be barred by limitation. In support of his above submissions, Shri. Thakore, learned counsel for the original plaintiffs has relied upon the following the decisions of the Hon'ble Supreme Court:

(1). Roop Lal Sathi v. Nachhattar Singh Gill reported in (1982) 3 SCC 487

(2). D. Ramachandran v. RV. Jankiraman AIR 1999 SC 1128.

(3). V. Narayanaswamy v. C.P Thirunavukkarasu. reported in (2000) 2 SCC 294.

(4). Sopan Sukhdeo Sable v. Assistant Charity Commissioner reported in (2004) 3 SCC 137.

35. It is further submitted by Shri. Thakore, learned counsel for the original plaintiffs that in the present case the principle of deemed notice from the date of registration of the registered sale deed cannot be applied. It is submitted that principle of deemed notice cannot be applied to the owner of the property i.e the plaintiffs in the present case who are the adjudged sharers and heirs of Nawab. In support of above submission, learned counsel for the original plaintiffs has relied upon the Section 3 of the Transfer of Property Act r/w explanation 1. It is submitted that since the plaintiffs are the original owner being adjudged sharers and heirs of Nawab and therefore, were not statutorily obliged to verify and keep track of the subsequent fraudulent transactions and mutations, executed behind their back. It is submitted that fiction of deemed notice of the transactions and mutations applies only to person acquiring the right and interest in the property and not to the person holding the right and interest in the property. In support of his above submission, he has relied upon the following decisions of the Hon'ble Supreme Court.

(1). Janardhanam Prasad v. Ramdas. reported in (2007) 15 SCC 174.

(2). Dilboo (Smt.) (Dead) By Lrs. v. Dhanraji (Smt.) (Dead) reported in (2000) 7 SCC 702.

(3). Kanjibhai Bhagwanjibhai Patel v. Nanduben Shamjibhai Sorathiya Through POA Dharmesh P. Trivedi reported in (2013) 1 GLR 51.

(4). Bahadurbhai Laljibhai Malhotra v. Ambalal Joitaram Heir of Joitaram Ranchhoddas reported in (2015) 3 GLR 2760.

(5). Unreported judgment in Civil Revision Application No. 338 of 2013 dated 17.07.2015

36. It is further submitted by Shri. Thakore, learned counsel for the original plaintiff that even otherwise since gross and serious fraud is perpetrated and the plaintiffs are seeking quashing and setting aside all such transactions and conveyances fraudulently executed, Section 17 of the Limitation Act would be applicable and therefore, the suit can be said to have been filed within the period of limitation. It is submitted that therefore, the learned trial Court has materially erred in rejecting the plaint under Order VII Rule 11(d) of the Code of Civil Procedure.

37. It is further submitted by Shri. Thakore, learned counsel for the original plaintiffs that contentions on behalf of the defendants that plaintiff no. 6 had executed registered sale deed in the year 1969 and therefore, was aware of all transactions since 1969 is misrepresentation of facts. It is submitted that sale deeds in the year 1969 in favour of defendants no. 1 to 4 were executed by defendant no. 5-Rambhai Chaturbhai Patel as power of attorney of original owner i.e adjudged sharers and legal heirs of Nawab and not by the adjudged sharers and heirs of Nawab. It is submitted that all the said registered sale deeds are also part of the list of the documents. It is submitted that therefore, in view of said specific and categorical pleadings, the contention of defendants, otherwise than pleadings in the plaint cannot be accepted and made basis of rejection of plaint under Order VII Rule 11 of the Code of Civil Procedure, as adjudication of the same will require full-fledged trial. It is submitted that similarly on other contentions of the defendants with respect to the prior knowledge of the plaintiffs of the earlier transactions, particularly prior to 2004 and disposal of the proceedings before the High Court in the year 2007 are also disputed. It is submitted that therefore, the same also cannot be accepted without any trial on the said issues. It is submitted that even if without prejudice, even knowledge can be attributed to plaintiff no. 6, the same would not be applicable to other plaintiffs, as qua them there is no allegation of execution of any conveyance and consequent knowledge.

38. Making above submissions and relying upon the above decisions, it is requested to allow the present appeal and to quash and set aside the impugned common order passed by the learned trial Court and rejection of the plaint under Order VII Rule 11(d) of the Code of Civil Procedure.

39. Present appeal is vehemently opposed by learned advocates appearing on behalf of the original defendants no. 8 to 11, 13, 16 to 27 and 33 to 38.

40. Learned advocates for the respective original defendants have vehemently submitted that in the facts and circumstances of the case, the learned trial Court has not committed any error in rejecting the plaint under Order VII Rule 11(d) of the Code of Civil Procedure. It is further submitted that the original plaintiffs have instituted suit on 07.03.2008 and it was the case on behalf of plaintiffs that they learnt about various sale deeds and illegal transactions with respect to subject land somewhere in the year 2005. It is submitted that even according to the original plaintiffs, the cause of action for filing said suit arose since in the year 1969, when for the first time, subject land was transferred by executing registered sale deeds and thereafter the same has been further transferred by way of various registered sale deeds. It is submitted that during the course of the hearing, original plaintiffs have admitted before this Court in earlier petition that they came to know about such transactions after learning about a public notice given in relation to the proceedings, that was pending before this Court by way of Special Civil Application No. 8848 of 2002 and other allied petitions. It is submitted that thus on 1st November 2004, original plaintiffs had filed a Civil Application being No. 11711 of 2005 before this Court inter alia for being impleaded as party to said Special Civil Application. It is submitted that Civil Application No. 11711 of 2005 was affirmed on 1.11.2004 It is submitted that therefore even from 1.11.2004 the starting point of limitation is considered, suit is filed after a period of 3 years and therefore, the learned trial Court has rightly rejected the plaint under Order VII Rule 11(d) of the Code of Civil Procedure.

41. It is further submitted by Shri. Jay Kansara, learned advocate for M/s. Wadia Gandy & Co. for the respondent no. 8 that public notice which is purported basis of knowledge for original plaintiffs was published on 6.7.2003, pursuant to the order passed by this Court in aforesaid Special Civil Application. It is submitted that however, the plaintiffs have sought to contend that they came to know about such transactions only somewhere in the year 2005 and thus the said suit filed in the year 2008 is within, the period of limitation. It is submitted that as such no facts have been pleaded in the entire plaint only with a view to mislead and misguide the Court.

42. It is further submitted that even otherwise admittedly, Civil Application No. 11711 of 2005 was signed and affirmed on 1.11.2004 and therefore, filing of the suit on 07.03.2008 is ex-facie barred by law of limitation.

43. It is further submitted on behalf of the original defendants no. 8 that out of total area of approximately 2814 acres, the original defendant no. 1 in the suit holds and possesses total 1603 acres of land which has been purchased by the original defendant no. 8 by different registered sale deeds. It is submitted that after execution of the respective registered sale deeds, name of the original defendant no. 8 has been appearing in the revenue record/survey records and no action whatsoever has been taken by the original plaintiffs for challenging the same. It is submitted that after filing of the Civil Application No. 11711 of 2005 in Special Civil Application No. 8848 of 2002, the plaintiffs were completely aware about title and possession of the original defendant no. 8 vis-a-vis subject land.

44. It is further submitted by Shri. Jay Kansara learned advocate for the original defendant no. 8 that on perusal of the records and proceedings of the suit reveals that original plaintiffs have produced various documents pertaining to subject land on record before the learned trial Court. It is submitted that further perusal also shows that such documents were obtained by the plaintiffs in the year 2000 (mark 3.2 onwards in the records and proceedings of Special Civil Suit No. 79 of 2008). It is submitted that even then no steps were taken by the plaintiffs to either approach the learned trial Court or other competent Court for seeking appropriate reliefs. It is submitted that therefore, the limitation would start running against plaintiffs from the year 2000. It is submitted that thus the said suit which is filed in the year 2008 is ex-facie barred by law of limitation. It is submitted that document produced at mark 3/2 onwards are the documents placed on record by plaintiffs themselves along with the said suit and therefore, the aforesaid cannot be controverted by the original plaintiffs.

45. It is further submitted by Shri. Jay Kansara, learned advocate for the original defendants that it is settled proposition of law that a registered instrument/document is presumed to be in public knowledge from the date of its registration. In support of his above submission, he has relied upon decision of this Court in the case in the case of Becharbhai Zaverbhai Patel v. Jashbhai Shivabhai Patel reported in 2013 (1) GLR 398. It is submitted that considering the above, there remains no iota of doubts that limitation started running against the plaintiffs from the year 1969. It is submitted that however in light of the provision of Articles 56 and 59 of the Limitation Act, 1963, even if the period is to be considered from the date of knowledge, the same would be from the year 2000, when the plaintiffs acquired certified copies of sale deeds pertaining to the subject land from the competent authority. It is submitted that therefore, from any angle suit is barred by law of limitation and therefore, the learned trial Court has rightly rejected the plaint under Order VII Ruled 11(d) of the Code of Civil Procedure, 1908.

46. It is further submitted by Shri. Jay Kansara, learned advocate for the original defendants no. 8 that original plaintiff no. 6 had sold approximately 821 acres of land in the year 1969 and by suppressing such material facts from the trial Court, suit has been filed. It is submitted that even though the registered sale deeds are produced by the original plaintiffs at mark 3.6 and 3.8 no averments whatsoever are made in the plaint vis-a-vis the same. It is submitted that even though original plaintiffs were aware of aforesaid facts, they have deliberately and with a view to mislead and misguide Court, have suppressed the facts from the learned trial Court as well as this Court in the captioned Appeal. It is submitted that as defendant no. 8 revealed such fact before learned trial Court thereafter plaintiffs no. 1 to 3 alone have chosen to file present appeal and rest of the plaintiffs are joined as party respondent being respondent nos. 41 to 45 in the appeal.

47. It is further submitted by the learned advocate for the original defendants that as such original plaintiffs along with others have entered into partnership agreement with one Shri. Bharat Unadkat on 23.01.2002 It is submitted that such fact was deliberately concealed and suppressed by the plaintiffs from the learned trial Court and this Court for achieved their ill designed. It is submitted that original defendant no. 8 has revealed such fact before the learned trial Court and same has not been controverted by the original plaintiffs. It is submitted that considering the above, there remains no iota of doubts that factum of transactions relating to subject land came to the knowledge of the original plaintiffs at various point of time, however no efforts whatsoever were made by them for seeking appropriate relief within the period of limitation.

48. It is further submitted by the learned advocates for the original defendants that Section 14 of the Limitation Act shall be no avail to the original plaintiffs in the present proceedings. It is submitted that at no point of time, the plaintiffs were prosecuting any civil proceeding against the original defendants and thus, the said contention has to be rejected at the threshold without dwelling further into the same.

49. It is further submitted by the learned advocates for the original defendants that Section 17 of the Limitation Act shall also be of no avail to the original plaintiffs. It is submitted that even assuming whilst denying that there was fraud committed in relation to the transfer of subject land, the same became known to plaintiffs in the year 2000 and since that time till 2008, the plaintiffs did not filed any suit against the original defendants. It is submitted that it is no more res-integra that after learning about the alleged fraud if plaintiffs decided not to take any steps then in such case, no indulgence can be shown in their favour and it is required to be presumed that plaintiffs have waived and/or acquiesced their alleged rights over the subject land.

50. It is further submitted by the learned advocates for the original defendants that Article 56 and 59 of the Limitation Act shall be of no avail to the plaintiffs. It is submitted that period of limitation as prescribed under such articles is three years from the date of knowledge. It is submitted that admittedly the plaintiffs had knowledge about all transactions since the year 2000. It is submitted that therefore, filing of the suit in the year 2008 is ex-facie barred by law of limitation.

51. It is further submitted by the learned advocates for the original defendants that Article 65 of the Limitation Act shall be of no avail to the original plaintiffs. It is required to be noted that the plaintiffs have not sought any reliefs vis-a-vis declaration that they are purportedly in possession of the subject land and thus the submission is completely merit less. It is submitted that without prejudice to the above, even if the prayer of possession is to be considered, then it is indisputable fact that since the period of 1985 to 1995, defendant no. 8 has been in possession of approximately 1603 acres of land pursuant to the execution of the registered sale deeds. It is submitted that meaning thereby, the possession of the defendant no. 8 was adverse to the plaintiffs since 1985. It is submitted that considering the facts of the present case, suit was required to be filed within 12 years from 1985. It is submitted that thus the said suit is apparently filed beyond the prescribed period of limitation as provided under Article 65 of the Limitation Act.

52. It is further submitted by the learned advocates for the original defendants that Section 3 of the Transfer of Property Act shall be of no avail to the plaintiffs. It is submitted that even assuming the argument of plaintiffs to be correct, even then the date of first transaction, which was done at the behest of plaintiff no. 6 and its registration cannot be ignored. It is submitted that in addition and without prejudice to the above, that there is no denial to the fact that original plaintiffs had knowledge about the transaction with respect to subject land since the year 2000. It is submitted that therefore, such submissions of plaintiffs vis-a-vis Section 3 of Transfer of Property Act is nothing but an attempt on their part to deviate from the aspect of their admitted knowledge since the year 2000. It is submitted that even otherwise the original plaintiffs have neither disputed nor denied the aforesaid contention. It is submitted that therefore, the aforesaid submissions of original plaintiffs in relation of Section 3 of Transfer of Property Act is required to be discarded in its entirety and the appeal is required to be dismissed. It is submitted that considering the aforesaid submissions, authority/judgment cited by original plaintiffs in this regard are also required to be discarded on the peculiar facts of the present case.

53. Making above submissions and relying upon the following judgments, it is requested dismiss the present appeal by submitting that no error has been committed by the learned trial court in rejecting the plaint under Order VII Rule 11(d) of the Code of Civil Procedure.

I. Samar Singh v. Kedar Nath reported in AIR 1987 SC 1926.

II. Jamnagar Municipal Corporation… v. M/S. Vijay & Co.…. reported in 1994 (2) GLR 1773.

III. Becharbhai Zaverbhai Patel v. Jashbhai Shivabhai Patel reported in 2013 (1) GLR 398.

IV. Fatehji and Company v. L.M Nagpal reported in (2015) 8 SCC 390.

V. Binod Bihari Singh v. Union Of India. reported in AIR 1993 SC 1245.

VI. T. Arvindandan v. T.V Satyapal reported in AIR 1977 SC 2421.

VII. Maharaj Shri. Monverndrasinji Ranjitsinhji Jadeja v. Rajmata Vijaymuverba wd/o Late Maharaja Mahendrasinhji reported in 1998 (2) GLH 823.

54. Heard the learned advocates for the respective parties at length. We have perused and gone through the impugned common order passed by the learned trial Court. By impugned order, the learned trial Court has rejected the plaint under Order VII Rule 11(d) of the Code of Civil Procedure, 1908 on the ground that the suit filed by the original plaintiffs for the relief sought in the plaint are barred by limitation.

55. Before considering the present appeal on merits, few decision of the Hon'ble Supreme Court as well as this Court on Order 7 Rule 11 of the Code of Civil Procedure are required to be referred to and considered.

56. In the case of T. Trivandam v. T.V Satyapal reported in (1977) 4 SCC 467 while considering the very same provision i.e Order 7 Rule 11 of the Code of Civil Procedure and the decree of trial Court in considering the such application, the Hon'ble Supreme Court in para 5 has observed and held as under:

“We have not the slightest hesitation in condemning the petitioner for gross abuse of the process of the court repeatedly and unrepentently 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 Munsifs 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 Order VII, Rule 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 Order X, C.P.C An activist Judge is the answer to irresponsible law suits.

57. In the case of The Chruch of Christ Charitable Trust and Educational Charitable Society v. Ponniamman Educational Trust reported in AIR 2012 SC 3912, in para 8 to 10 has observed and held as under:

8. While scrutinizing the plaint averments, it is the bounden duty of the trial Court to ascertain the materials for cause of action. The cause of action is a bundle of facts which taken with the law applicable to them gives the plaintiff the right to relief against the defendant. Every fact which is necessary for the plaintiff to prove to enable him to get a decree should be set out in clear terms. It is worthwhile to find out the meaning of the words “cause of action”. A cause 9 Page 10 of action must include some act done by the defendant since in the absence of such an act no cause of action can possibly accrue.

9. In A.B.C Laminart Pvt. Ltd. v. A.P Agencies, Salem (1989) 2 SCC 163 : (AIR 1989 SC 1239), this Court explained the meaning of “cause of action” as follows:

“12. 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, it is a bundle of facts which taken with the law applicable to them gives the plaintiff a right to relief against the defendant. It must include some act done by the defendant since in the absence of such an act no cause of action can possibly accrue. It is not limited to the actual infringement of the right sued on but includes all the material facts on which it is founded. It does not comprise evidence necessary to prove such facts, but every fact necessary for the plaintiff to prove to enable him to obtain a decree. Everything which if not proved would give the defendant a right to immediate judgment must be part of the cause of action. But it has no relation whatever to the defence which may be set up by the defendant nor does it depend upon the character of the relief prayed for by the plaintiff.”

10. It is useful to refer the judgment in Bloom Dekor Ltd. v. Subhash Himatlal Desai (1994) 6 SCC 322, wherein a three Judge Bench of this Court held as under:

“28. By “cause of action” it is meant 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, (Cooke v. Gill, 1873 LR 8 CP 107). In other words, a bundle of facts which it is necessary for the plaintiff to prove in order to succeed in the suit.”

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.

58. In the case of Kanjibhai Bhagwanjibhai Patel v. Nanduben Shamjibhai Sorathiya Through P.O.A Dharmesh P. Trivedi reported in 2013 (1) GLR 51, the learned Single Judge of this Court after considering the various decisions of the Hon'ble on exercise of powers under Order 7 Rule 11 of the Code of Civil Procedure has observed and held that if on considering the averments in plaint, it is found that suit is time barred, the plaint/suit can be rejected in exercise of powers under Order 7 Rule 11(d) of the Code of Civil Procedure.

59. In the case reported in Becharbhai Zaverbhai Patel v. Jashbhai Shivabhai Patel 2013 (1) GLR 398, after considering the decision of the Hon'ble Supreme Court in the case of Dilboo (Smt.) (Dead) by L.rs v. Dhanraji (Smt.) (Dead) reported in (2000) 7 SCC 702, the learned Single Judge of this Court has observed and held that registration of the documents can be said to be a deemed knowledge and the plaint can be rejected on the ground that the same is barred by law of limitation.

60. Considering the law laid down by the Hon'ble Supreme Court in the aforesaid decisions and applying the same to the facts of the case on hand, for the reasons below stated, we are of the opinion that the learned trial Court has rightly rejected the plaint under Order VII Rule 11(d) of the Code of Civil Procedure.

61. At the outset, it is required to be noted that the suit has been filed by the original plaintiffs with respect to the land bearing old revenue survey no. 400 paiki and new survey no. 506 paiki admeasuring 2814.28 acres. It is required to be noted that the cause of action pleaded in the suit is the registered sale deeds executed in favour of original defendants no. 1 to 4, executed in the year 1969. It is required to be noted that thereafter there are number of transactions which had taken place with respect to the suit land in question for which, mutation entries were made. After 1969 mutation revenue proceedings have been initiated. Number of even tenancy proceedings were initiated. It is the case on behalf of the original plaintiffs that they had knowledge of transactions/entries with respect to the suit land in question, more particularly, in favour of original defendants no. 1 to 4 which were executed in the year 1969 when they filed Civil Application No. 11711 of 2005 in pending Special Civil Application No. 8848 of 2002. Therefore, it is the case on behalf of the original plaintiffs that thereafter the aforesaid Special Civil Application No. 8848 of 2002 came to be disposed of by the High Court in the year 2007 observing that it will be open for the parties to initiate civil proceedings and thereafter when suit has been preferred in the year 2008, the same cannot be said to be beyond the period of limitation. However, it is required to be noted that the sale deeds in question are executed in the year 1969 with respect to 1673 acres of land. All the sale deeds were registered sale deeds. Mutation entries have been made thereafter. One petition was filed before this Court by way of Special Civil Application No. 8848 of 2002 with respect to land in question. However, the some of the respondents were not served and therefore, public notice was given and at that stage appellants herein preferred Civil Application No. 11711 of 2005 permitting them to be joined as party respondents in the said petition. The said Civil Application was affirmed on 1.11.2004 Therefore, the fact of disputed sale deeds and other revenue proceedings and other proceedings in respect of the suit properties were within the knowledge of the plaintiffs on 1.11.2004 Despite the above, the suit has been preferred challenging the transactions/registered sale deeds executed from 1969 onwards, in the year 2008 i.e beyond the period of three years. Under the circumstances, apart from the fact that all the mutations entries were made in the revenue records with respect to the registered sale deeds executed in the year 1969/1970, the plaintiffs can be said to have deemed knowledge, at least from 1.11.2004, when the plaintiffs came to know about the fact of disputed sale deeds and other revenue proceedings and other proceedings in respect of the suit property on 1.11.2004 and thereafter after a period of three years, the suit has been preferred in the year 2008. Under the circumstances, the learned trial Court has rightly rejected the plaint under Order VII Rule 11(d) of the Code of Civil Procedure.

62. Even otherwise, it is required to be noted that from the document produced on record which are produced by the plaintiffs, produced at Mark 3.6 to 3.8 it can also be said that the plaintiffs had knowledge since 2000, when they applied for certified copies of the mutation entries and copy of registered sale deeds executed in the year 1969. Therefore, also suit is barred by limitation.

63. It is also required to be noted that even original plaintiff no. 6 was a signatory to registered sale deeds executed in the year 1969 and despite the above, the plaintiffs had not disclosed aforesaid facts in the suit. Only when the defendants pointed out the aforesaid, thereafter when the present appeal is preferred the same has been preferred by the original plaintiffs no. 1 to 3 only and rest of the plaintiffs including of original plaintiff no. 6 who had executed sale deed in the year 1969 are joined as party respondents in the present appeal which shows the conduct on the part of the appellants.

64. At this stage, it is required to be noted that even the original plaintiffs have not stated correct facts before the learned trial Court and there are suppression of material facts in the plaint/suit. In the plaint/suit, it is the case on behalf of the plaintiffs that they came to know about the transactions/registered sale deeds in the year 2005. However nothing has been averred in the plaint with respect to filing of Civil Application No. 11711 of 2005 in Special Civil Application No. 8848 of 2002 and other allied petitions. They did not disclose the fact that the original plaint no. 6 also executed sale deed in the year 1969 with respect to land ademasuring 821 acres. As observed herein above, after the registered sale deeds were executed in the year 1969 in favour of original defendants no. 1 to 4 which are challenged by way of filing suit in the year 2008, thereafter approximately 1603 acres of land has been sold in favour of the original defendant no. 8 by executing registered sale deeds. Thereafter number of registered sale deeds have been executed in favour of number of persons including proposed defendants and third parties rights are already created.

65. Now, so far as reliance placed upon Section 14 of the Limitation Act and the contention on behalf of the plaintiffs that as the High Court disposed of the Special Civil Application No. 8848 of 2002 and other allied petitions in the year 2007 observing that it will be open for the plaintiffs to file civil proceedings and therefore, the suit filed in the year 2008 is within the period of limitation is concerned, it is required to be noted that at no point of time plaintiffs were prosecuting civil proceeding against the defendants. Under the circumstances, Section 14 of the Limitation Act shall not be applicable to the facts of the case on hand and/or same shall be of any avail to the plaintiffs. Now, so far as reliance placed upon Section 17 of the Limitation Act and the contention on behalf of the plaintiffs that as they have pleaded fraud committed in relation to the transfer of subject lands is concerned, it is required to be noted that as observed herein above the plaintiffs had knowledge of the transactions at least in the year 2000 and if not in 2000 then in the year 2004 i.e on 1.11.2004 The suit has been preferred in the year 2008. The plaintiffs did not file any suit against the defendants till 2008. Under the circumstances, Section 17 of the Limitation Act shall also be of no avail to the plaintiffs.

66. As the suit has been preferred after a period of three years from the date of knowledge of the transactions, Article 56 and 59 of the Limitation Act shall not be applicable and/or same shall be of any avail to the plaintiffs.

67. Now, so far as the contention on behalf of the appellants - original plaintiffs relying upon Article 65 of the Limitation Act that plaintiffs had sought relief for possession of the disputed land in question and therefore, the suit can be filed within the period of 12 years is concerned, the aforesaid has no substance. Apart from the fact that original defendant no. 8 is in possession of approximately 1603 crores of land since 1985 onwards, it is required to be noted that there are no averments when plaintiffs were dispossessed. Therefore, the suit is apparently filed beyond the period of limitation even as provided under Article 66 of the Limitation Act.

68. Considering the aforesaid facts and circumstances of the case and the purpose and object of Order VII Rule 11(d) of the Code of Civil Procedure and when it has been found that the suit is barred by limitation, the learned trial Court has rightly rejected the plaint under Order VII Rule 11(d) of the Code of Civil Procedure. We see no reason to interfere with the impugned judgment and order passed by the learned trial Court rejecting the plaint under Order VII Rule 11(d) of the Code of Civil Procedure. We are of the opinion that present suit is nothing but an abuse of process of law and Court and therefore, considering the aforesaid decisions of the Hon'ble Supreme Court plaint is rightly rejected under Order VII Rule 11(d) of the Code of Civil Procedure. At this stage, it is required to be noted that it appears that original plaintiffs wake up only in the year 2000/2002. It appears that the litigation is financed by one Shri. Bharat Unadkat with whom the plaintiffs have entered into partnership agreement on 23.1.2002 That the said partnership agreement is produced on record before the learned trial Court. It appears that plaintiffs were aware of the litigation and sale of agriculture land admeasuring 1603 acres before the date of partnership agreement dated 23.01.2002 and thereupon agreed to share/assign 40% land to said Shri. Bharat Unadkat for financing litigation and attending the Court. Be that as it may, as observed herein above, the suit and the reliefs prayed in the suit are barred by limitation. The learned trial Court has rightly rejected the plaint under Order VII Rule 11(d) of the Code of Civil Procedure.

69. In view of the above and for the reasons stated above, present appeal fails and same deserves to be dismissed and is accordingly dismissed.

70. In view of dismissal of First Appeal, Civil Application stands dismissed.