BECHARBHAI ZAVERBHAI PATEL Vs. JASHBHAI SHIVABHAI PATEL

JUDGEMENT

(1.) 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 herein-original 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 ex-facie barred by law of limitation.

(2.) That the respondent nos.1.1 to 1.4 original plaintiffs have instituted Regular Civil Suit No.694 of 2010 against the petitioners herein-original 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).

(3.) 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 By Lrs & Anr vs. Dhanraji and Others, 2000 7 SCC 702has 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.