DAHIBEN Vs. MANGUBEN

JUDGEMENT

(1.) Captioned appeal is directed against the judgment dtd. 15/4/2025 passed by the Additional Senior Civil Judge & Chief Judicial Magistrate below application Exh.48 (hereinafter referred to as "the impugned judgment") whereby the Special Civil Suit no. 49 of 2018 (hereinafter referred to as "the suit") has been rejected. The suit was filed, inter alia, challenging the sale deeds dtd. 29/8/1996, 16/7/2005, 26/9/2007 and 17/5/2015 executed in favour of the defendants with respect to revenue survey no. 469 situated at Moje Makarba, District Ahmedabad, (hereinafter referred to as "the land in question"). Additionally, the plaintiffs have prayed for declaration that they be declared as the owners of the land in question. For the sake of convenience, the parties are referred to as per their status in the suit .

(2.) Application Order VII Rule 11 of the Code of Civil Procedure , 1908 (hereinafter referred to as "the Code"), was filed by the defendant no.19 raising the grounds namely absence of cause of action; suit being barred by limitation and provisions of sec. 85 of the Gujarat Tenancy and Agricultural Land Act, 1948 (hereinafter referred to as "the Act of 1948"). Application came to be allowed by the impugned judgment. Being aggrieved, the captioned appeal.

(3.) Mr D.P. Kinariwala, learned Advocate with Mr Natvar Bharwad, learned Advocate submitted that the plaintiffs, have challenged the sale deeds and the latter part of the relief in the suit was seeking declaration that the plaintiffs are the owners and in possession of the land in question. It is submitted that when there was a declaration sought as regards the ownership of the land in question coupled with the permanent injunction, the trial Court, ought to have considered the limitation as provided under Article 58 of the Limitation Act,1963 (hereinafter referred to as "the Act of 1963") and having not considered the provisions in the right earnest, the learned Judge has committed grave error in dismissing the suit on the ground of it being barred by limitation. It is submitted that considering the prayers and more particularly, the latter part, it could not have been said that the suit is barred by limitation.