RANJITHMAL CHORDIYA Vs. SHIVRAM SINGH & ANR.

JUDGEMENT

(1.) THE defendant -petitioner has preferred this Civil Revision Petition under Sec. 115 of the Code of Civil Procedure against the order dated 4.8.2011 passed by the Additional District Judge (Fast Track) No. 9, Jaipur Metropolitan, Jaipur in Civil Suit No. 05/2009 whereby the learned Court below has dismissed the application under Order 7 Rule 11 CPC filed by the petitioner. Brief relevant facts for the disposal of this petition are that plaintiff -non -petitioner No. 1 - Shri Shivram Singh filed a suit for declaration and permanent injunction against the defendant -petitioner and defendant -non -petitioner No. 2 - Smt. Guman Kanwar with the averment that his father Late Thakur Panne Singh died on 21.11.1977 when the non -petitioner was minor of the age of about 9 years and he is only son of his father begotten from his second wife defendant -non -petitioner -Smt. Guman Kanwar. It was further averred that his father executed a will dated 19.11.1977 in his favour and he has acquired title and ownership rights in the suit property under the will. It was further submitted that defendant -petitioner -Shri Ranjithmal Chordia fraudulently got executed a registered sale deed dated 27.8.1982 in his favour in regard to the suit property from the defendant -non -petitioner and the same is void and illegal against the rights of the plaintiff -non -petitioner. It was further submitted that the aforesaid sale deed was executed in pursuance of the permission granted by the District Judge, Merta City (District Nagaur) vide its order dated 3.7.1982 and the fact of execution of the aforesaid sale deed was never in his knowledge. It was also averred that the cause of action arose on 13.9.1999 when the petitioner claimed possession and ownership rights in the suit property on the basis of the sale deed and threatened the non -petitioner to dispossess him from the suit property. It was also stated that the fact of knowledge of execution of the sale -deed was acquired by him only on 13.9.1999. It was alleged in the plaint that the suit is within limitation under Arts. 56, 58 and 313 of the Limitation Act (hereinafter to be referred as "the Act").

(2.) THE defendant -petitioner -Shri Ranjithmal Chordia filed an application under Order 7 Rule 11 CPC for rejection of the plaint on the ground that the suit is barred by limitation even from the reading of the averments made in the plaint itself. It was averred in the application that the prescribed period of three years for filing the present suit commenced as soon as the plaintiff -non -petitioner attained majority whereas the suit has been filed in the year 1999.

(3.) ASSAILING the impugned order, learned counsel for the petitioner submitted that even from the reading of the plaint filed by the non -petitioner it is evident that the suit is barred by limitation under the provisions of the Limitation Act and more particularly with reference to Secs. 6, 8 and Art. 60 of the same because the non -petitioner himself has stated that he got right and title in the suit property under the will dated 19.11.1977 allegedly executed by his father and the sale deed executed in favour of the petitioner is illegal, void and inoperative, against his rights and the same is liable to be declared so. It is also clear that the non -petitioner attained majority on 22.8.1987 and, therefore, the suit could have been filed on or before 22.8.1990 within three years from the date on which the non -petitioner attained majority. According to learned counsel every case in which plaintiff files a suit to set aside a transfer of property made by his guardian, it is to be filed within three years from date on which the minor attains majority and, therefore, in the present case, the case of the non -petitioner is that his mother -defendant -non -petitioner No. 2 without any right executed the sale deed in question and it is to be set aside, it was essential for the non -petitioner to file the suit within three years of attaining majority i.e. 22.8.1987. It was further submitted that in such a suit by a plaintiff challenging the transfer of property allegedly made during his minority by his guardian, the question of knowledge of such transfer is totally irrelevant and the suit is to be filed within the period of three years prescribed under Art. 60 of the Act. According to learned counsel, Art. 59 of the Act relating to a suit for cancellation or setting aside of an instrument or decree or for the rescission of a contract is applicable to a case other than a case of a minor. It was further submitted that a conjoint reading of Secs. 6 and 8 of the Act clearly makes out that the maximum period is three years from the cessation of the disability including the minority and this period starts from the date on which the disability ends.