KANTIBHAI GHELABHAI PATEL Vs. MANSUKHBHAI GHELABHAI PATEL

JUDGEMENT

(1.) The original plaintiff has filed this appeal under Sec. 96 of the Code of Civil Procedure, 1908, challenging the order of the 13th Additional Senior Civil Judge, Surat, dtd. 15/1/2019. By the aforesaid order under Order VII Rule XI of the Civil Procedure Code, an application filed by the defendant nos.1 and 2 i.e. the present respondent nos.1 and 2 in this appeal was allowed. The appellant-original plaintiff filed a suit being Special Civil Suit No.207 of 2015 before the Civil Court. It was the case of the appellant-original plaintiff that in Surat, Sub District:Choryasi at Village:Viheel, land being survey no.29, block No.33, was an ancestral property of the grandfather of plaintiff-Kalidas Nathubhai amongst other lands. On the death of his grandfather, the lands including the one referred to herein above, came to the share of his father Ghelabhai Kalidas.

(2.) It was the case of the plaintiff that his father Ghelabhai Kalidas made a Will on 29/1/1985 bequeathing the lands separately to his six successors including the plaintiff. The plaintiff got a land being survey no.42/1. It was the case of the plaintiff that subsequently three separate sale deeds were executed on 5/11/2001 by the successors of the father Ghelabhai Kalidas declaring the earlier Will as cancelled. This was registered on 13/2/2002. Further it was the case of the plaintiff-appellant that the father died on 6/2/2003 and contrary to the settlement entered into by the sister Nirmalaben without the knowledge of the plaintiff, she made a Will on 1/2/2007 and the land which was otherwise bequeathed in favour of plaintiff at Village:Viheel was sold after the death of Nirmalaben on 20/6/2007. The land in question viz. Survey no.29/1 at Village:Viheel was sold vide registered sale deed of 19/6/2011 which according to the plaintiff-appellant was registered on 20/7/2012. The cause of action to file the suit occurred when the position of the appellant-plaintiff was sought to be interfered with in the year 2015.

(3.) The defendant nos.1 and 2 filed an application under Order VII Rule XI claiming that the suit was hopelessly time barred inasmuch as, the Will of the father of the year 1985 was sought to be challenged of which a revenue entry was already made in the year 2005. Even in an appeal filed by the appellant-plaintiff, the order of the Revenue Court had come on 24/3/2008. The registered sale deed in favour of the defendant nos.3 and 4 was executed in 2011 and therefore the suit filed on 18/4/2015 was hopelessly time barred.