ASHVINBHAI ASHABHAI PATEL Vs. UDESINH BHAILALBHAI PADHIYAR

JUDGEMENT

(1.) By way of this First Appeal under Sec. 96 of the Code of Civil Procedure, the appellants - original plaintiffs have challenged the legality and validity of order dtd. 6/9/2018 passed by the learned Principal Civil Court, Savli in Special Civil Suit No. 198 of 2017 which was newly numbered as Special Civil Suit No. 268 of 2017.

(2.) The brief facts leading to rise of present appeal are that the appellants - plaintiffs are the agriculturists and there is a land situated in the sim of Village Shripor Timbi (Taluka & District : Vadodara) bearing land revenue survey no. 27 (new survey no. 36) admeasuring 068.80 sq.mtrs. This land was originally belonging to one Bai Chanchal, wife of Shri Mohan Parshottam and upon death, the land came to be mutated in the name of Shankerbhai Gopalbhai. There was a tenant in the land named as Somabhai Gokalbhai and as such, by virtue of provision contained under Sec. 32G of the Tenancy Act, the land came to be mutated in favour of Somabhai Gokalbhai and the said change of entry is dtd. 27/2/1965. After the death of said Somabhai Gokalbhai, on 11/7/1987, it came in the hands of Santokben widow of deceased Somabhai Gokalbhai and revenue entry no. 270 was also certified on 2/10/1972. Said Santokben executed a 'Will' and divested the property in favour of the Bhailalbhai Somabhai and then widow Santokben executed 'Will' on 25/2/1976 and after the death of said Santokben, the land was mutated in favour of Bhailalbhai Somabhai by way of entry No. 308 on 20/6/1980 and thereby, Bhailalbhai Somabhai became the sole owner of the said land. Though history regarding legal heirs is not that much necessary, but since it has been stated in the plaint, we may quote here the complete factual background. Aforementioned Bhailalbhai Somabhai Padhiyar died on 9/11/2012, leaving behind widow Gajaraben and two daughters, named Ramilaben and Savitaben and both were married. It is stated that both the daughters expired long back and the revenue entries have also been effected and certified on 14/7/2016. After the death of said Bhailalbhai Somabhai Padhiyar, legal heirs were mutated in the revenue records on 14/7/2016 and later on all the legal heirs of deceased Bhailalbhai Somabhai Padhiyar have relinquished their rights from the property in question in favour of defendant no. 1 i.e. Udesinh Bhailalbhai Padhiyar and revenue entry no. 659 was also effected to that effect and as such, son Udesinh Bhailalbhai is continued to be owner of the land in question in revenue records.

(3.) Mr. Chirag B. Patel, learned advocate appearing for the appellants has submitted that a bare reading of the order would clearly indicate that while passing the order, no adequate reasons are assigned and further no opportunity is given to the appellants. Practically, tenor of the order indicates that it is an ex-parte order and as such, the said order deserves to be quashed. It has further been submitted that while passing the impugned order, the trial court has opined that suit is beyond the period of limitation, however, as such, stated that the question of limitation is a mixed question of law and fact and as such, no powers could have been exercised under Order VII Rule 11 of the Code of Civil Procedure. Learned advocate Mr. Patel has further submitted that 24 months' time was granted from the date of necessary permission, so the period prescribed as such so long as the permission is granted, 24 months could not be treated as lapsed and as such, also, when the registered sale document behind the back is executed in favour of defendant no. 3, the cause of action started from at least that period and as such, it cannot be said in any manner that the suit is beyond the period of limitation. Apart from that, learned advocate appearing for the appellants has further submitted that the cause of action is bundle of facts and the case of action as to why suit was required to be brought is very much mentioned in separate paragraph no. 8 of the plaint, which clearly indicates that proper cause of action arose when the sale document took place on 6/5/2017 in favour of defendant no. 3. Therefore, learned advocate appearing for the appellants has submitted that gross error is committed by the trial court while passing the order. Learned advocate appearing for the appellants has made a reference to two decisions delivered, i.e. one delivered by the Hon'ble Apex Court in the case of Urvashiben & Anr., v. Krishnakant Manuprasad Trivedi reported in (2019) 13 SCC 372 as well as decision of this Court in the case of Bahadurbhai Laljibhai Malhotra v. Ambalal Joitaram Heir of Joitaram Ranchhoddas & Ors., reported in 2015 (3) GLR 2760 and by referring to paragraphs 19 and 20 and also paragraph 13 respectively of those decisions, a contention is raised that since the suit cannot be said to be beyond the period of limitation, the discretion exercised under Order VII Rule 11 of the Code of Civil Procedure is ill founded in the background of present facts on hand, hence, has requested that these issues can well be examined during the course of adjudication of the suit during trial. Hence, rejection of plaint at the threshold is uncalled for since there appears to be material irregularity in exercise of jurisdiction and by setting aside the impugned order and appeal be allowed.