ORAL ORDER
1. Present CRA filed u/s 115 of the Code of Civil Procedure, 1908 (in short "the Code"), the petitioners challenge order passed below Exh.41 in Regular Civil Suit No.166 of 2012, whereby application filed under Order 7 Rule 11 of the Code to reject the plaint at the behest of the defendant No.4 of the suit has been dismissed on the ground that the question of limitation can be decided after full-fledge trial as prima facie found to be mixed questions of law and acts.
2. Heard learned advocate Mr. NV Gandhi for the petitioners.
3. Learned advocate Mr. Gandhi referred to the copy of the plaint and submitted that the main relief asked in the plaint is to cancel the sale deed executed by Samuben Vyas wd/o
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Bechardas in favour of defendants of the suit in the year 1993 and the plaintiffs came out with the plea in the plaint that Samuben was an educated lady and was used to write and therefore, thumb impression on the sale deed, which is sought to be cancelled, is prima facie raising the submission and thus, based upon such averment, relief was claimed in para 10 of the claim to cancel the sale deed, else to declare that the sale deed executed on 11.10.1993 is not binding to them. He would further submit that during the lifetime, deceased Samuben has not questioned the legality and propriety of the sale deed, but their heirs and that too through power of attorney. Thus, she has admitted that the suit is hopelessly barred by the law of limitation, but the learned trial Court did not consider such aspect and by its cursory order, wrongly believed that the issue of limitation is mixed questions of law and facts.
4. I found prima facie thrust in the submission of learned advocate Mr. NV Gandhi. The solitary relief in the suit is to cancel the sale deed executed by deceased Samuben in 1993. The relief has been sought in the year 2012. The suit was filed by the grandson of deceased Samuben and that too through power of attorney holder Mr. Ghanshyambhai Mangaldas.
5. It is the contention of the power of attorney holder that deceased Samuben since was literate lady, was used to write and sign the document. However, in support of such document, nothing has been placed on record before the learned trial Court. Therefore, prima facie, it appears that the
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plaint has been filed with a motive to disturb and murky the title of the defendants.
6. Learned advocate Mr. Gandhi has also referred to the grounds raised in the application filed under Order 7 Rule 11 of the Code. That pursuant to the execution of the sale deed in 1993, revenue proceedings were undertaken. Notice u/s 135D of the Gujarat Land Revenue Code was served to deceased Samuben, but she did not object it and the revenue entry was firstly mutated and then certified by the revenue authorities, which stands in the name of the defendants till date. Under the circumstances, it can be inferred that the plaintiffs were knowing about execution of the sale deed since long, but by clever drafting, they tried to murky the title o the disputed property stands in favour of the defendant.
7. Apt to note that the learned trial Court while deciding the application filed under Order 7 Rule 11 of the Code was required to apply mind and to see that whether by clever drafting, the plaintiffs have tried to impeach the document executed in favour of the defendants and whether the attempt of the plaintiffs is beyond limitation or not. However, the findings of the learned trial Court is found to be short of reasons. Thus, this is a fit case to remand the matter for fresh hearing. Hence, I pass following order.
8. Present CRA is allowed. Impugned order dated 27.1.2017 passed by the learned 5thAddl. Civil Judge, Kalol below Exh.41 in Regular Civil Suit No.166 of 2012 is hereby quashed and set aside.
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8.1 Application Exh.41 filed in Regular Civil Suit No.166 of 2012 is restored to its original proceedings.
8.2 The learned trial Court is directed to decide application Exh.41 in accordance with law and on its merits without being influenced by the present order so also the impugned order, after hearing both the parties.
8.3 The learned trial Court is directed to decide the application Exh.41 as early as possible but not later than 12 weeks from the date of receipt of copy o this order.
(J. C. DOSHI,J)
SHEKHAR P. BARVE
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