High Court
Legal Reasoning
AO 40 21 Corrected Or.odtCorrected copy: In view of speaking to the minutes of the order dt. 06.10.2025, the order iscorrected. IN THE HIGH COURT OF JUDICATURE AT BOMBAYBENCH AT AURANGABADAPPEAL FROM ORDER NO. 40 OF 2021WITH CIVIL APPLICATION NO. 2529 OF 2023 IN AO/40/2021 Deelipkumar Sagarmal SabooAge 60 years, Occ. Business,R/o. Builder Housing Society,Nandavan Colony, Aurangabad.…Appellant (Orig. Defendant)VERSUSRamavtar Sagarmal Saboo,Age 54 years, Occ. Business,R/o. 436, Sita Sagar,Darzi Bazar,Chavni, Aurangabad.… Respondent (Orig. Plaintiff)…Advocate for Appellant : Mr. Anil S. BajajAdvocate for Respondent : Mr. Anand P. BhandariCORAM: SHAILESH P. BRAHME, J.RESERVED ON PRONOUNCED ON:: 25.09.2025 04.10.2025JUDGMENT : Heard finally with the consent of the parties.2.Appeal was admitted vide order dated 17.02.2023 on followingsubstantial question of law :(i)Whether there was any cause of action to seekpartition of the suit property when admittedly theregistered gift deed executed in favour of defendant is notchallenged ?1/11 AO 40 21 Corrected Or.odt3.Appellant is the original defendant, who is aggrieved by judgment anddecree dated 04.03.2021 passed by the lower appellate Court in RegularCivil Appeal No. 59/2020, reversing order of rejection of plaint passed bythe Trial Court below Exh. 16 and remanding the matter before Trial Courtfor decision on merits.4.Appellant and the respondent are real brothers. They jointlypurchased a house property bearing CTS No. 5254 situated at Tilak PethAurangabad vide sale-deed dated 10.06.2008. The appellant wanted to takefinancial assistance on the basis of the suit property, which was standing inthe joint name. He requested the respondent to transfer the suit property inhis name nominally. Considering the relationship, a conveyance deed wasexecuted on 02.12.2014 transferring the suit property to the appellant. Itwas a registered instrument. Thereafter a correction deed was executed on05.08.2015. On or about 10.11.2017, a memorandum of understanding wasexecuted between the parties, whereby the appellant assured to re-transferthe suit property to the respondent. The appellant had unholy intention tograb the suit property. It was discovered that no loan was taken, andfraudulently the registered instrument got executed from the respondent.Appellant is said to have avoided to re-transfer the property. The documentexecuted on 02.12.2014 revealed to be a gift-deed. The title and ownershipof the respondent was denied on 28.03.2019. Respondent was constrainedto file Spl. Civil Suit No. 109/2019 for the relief of partition, possession andinjunction.5.It is the defence of the appellant that the gift deed was executed bythe respondent in favour of the appellant on 0212.2014 consciously and itwas registered also. Thereafter, registered correction deed was executed on05.08.2015 to rectify the area shown in the earlier instrument. Theappellant never wanted to raise loan on the basis of the suit property. Thetransfer of the property was with the understanding and knowledge of therespondent. The memorandum is denied by the appellant. It is further2/11 AO 40 21 Corrected Or.odtcontended that suit is barred by limitation. There is no cause of action andsuch a suit without seeking declaration in respect of the gift deed is notmaintainable.6.Appellant filed application Exh. 16 under 7 Rule 11 (a) and (d) ofCPC. Respondent opposed the application by filing his say. Trial Courtallowed the application vide order 24.02.2020 and rejected the claim on thebasis of Order 7 Rule 11 (a). However, Trial Court, did not find favour withthe appellant for rejection of plaint under Order 7 Rule 11 (d) so far plea oflimitation is concerned. Being aggrieved respondent preferred Regular CivilAppeal No. 59/2020, which is allowed partly and order of rejection of plaintwas quashed and set aside. The matter is relegated to Trial Court fordeciding it on merits, in accordance with law, vide judgment and decreedated 04.03.2021, which is impugned in the present appeal.7.Learned counsel for appellant Mr. Bajaj submits that the lowerAppellate Court has committed perversity in allowing the appeal, whenrespondent was aware of the gift deed executed on 02.12.2014, which hasnot been challenged in the suit and bypassing the remedy only relief ofpartition and possession is sought for. It is submitted that in the absence ofany preexisting right no relief of partition can be granted and the suit is nottenable. The suit property ceased to be of the joint ownership and thereforeunless gift deed is quashed and set aside, no relief can be given to therespondent/plaintiff. It is submitted that there is no cause of action and avexatious suit has been filed, which is clear from meaningful reading of theplaint. The clever drafting has created an illusion of a cause of action whichneeds to be nipped in the bud. It is further submitted that the gift deed isexecuted on 02.12.2014 and the suit is filed on 04.04.2019 which is barredby time. 8.Learned counsel Mr. Anil Bajaj would further submit that the groundof parity pressed into service by the respondent by way of his affidavit in3/11 AO 40 21 Corrected Or.odtreply relying on the decision rendered by coordinate bench in Civil RevisionApplication No. 45/2020 cannot be made applicable. It is submitted thatthe order passed in parallel proceeding i.e. Special Civil Suit No. 109/2019was already considered while admitting appeal vide order dated17.02.2023. No ratio as such has been laid down in the said matter. Theappellant is said to have been entitled to claim rejection of the plaintindependently because of the change in circumstances.9.Per contra, learned counsel Mr. Bhandari for the respondentvehemently submits that in identical set of facts R.C.S. No. 108/2019 wasfiled. The appellant/defendant therein had filed an application for rejectionof plaint, which was rejected by a reasoned order. The same was confirmedby the Apex Court. In the teeth of that order present appeal is liable to bedismissed. It is submitted that the gift deed in question is void and it is notnecessary to challenge the same in the present suit. It is further submittedthat memorandum of understanding executed on 10.11.2017 affirms thefact that the gift deed executed by the respondent was nominal in natureand no relief as against it is required to be solicited. It is further submittedthat the lower appellate court has taken a plausible and reasonable view bymeaningful reading of the plaint. A full fledged trial is required to concludeas to whether suit is tenable or it is barred by limitation or not. It is furthersubmitted that present suit is not for partition of a joint family properties orancestral properties.10. I have considered the rival submissions of the parties. 11.The suit property was purchased by the parties jointly on 10.06.2008.In the strict sense this is not a joint family property of Hindu undividedfamily or ancestral property. Its a property of co-ownership. Due to somenegotiations between the parties registered a gift deed was executed by therespondent on 02.12.2014 in favour of the appellant. By a registeredcorrection deed dated 05.08.2015 the area of the subject matter was4/11 AO 40 21 Corrected Or.odtcorrected. The respondent wanted the appellant to re-transfer it. Byintervention of the elder brother and well wishers a memorandum ofunderstanding was executed on 10.11.2017. In this backdrop, a suit forpartition, possession and injunction was filed without there being anychallenge to the gift dated 02.12.2014.12.Both the counsels cited authorities on the scope of enquiry underOrder VII Rule 11 of CPC. There is no quarrel for the propositions that if nocause of action is made out and/or the suit is found to be barred by law, it ispermissible to reject the plaint. If the plaint is found to be vexatious, havingno cause of action or by clever drafting the cause action appears to havebeen created, that would be a ground to reject the plaint. The purport of thisdrastic provision is to save valuable time of the Court and the parties fromthe vexatious proceedings. The plaint and the documents filed along with itcan be taken into account. There is no difficultly in taking into considerationthe gift deed, memorandum of understanding, order passed by learnedSingle Judge in Civil Revision Application No. 45/2020 and order ofSupreme Court dismissing the Special Leave Petition.13.It reveals from record that Trial Court found that there was no causeof action. The submissions of the respondent that there was no need to seekdeclaration challenging gift deed was not approved and plaint was heldliable to be rejected. However, the rejection of plaint on the ground oflimitation was not accepted. In lower appellate Court no-crossobjection/cross appeal was filed by the appellant challenging the finding ofthe Trial Court on the plea of limitation. The Lower Appellate Court did notappreciate the entitlement of the appellant to challenge finding on thelimitation. Order XLI Rule 22 of CPC empowers the appellate Court toentertain challenge to findings without filing cross-objection or cross-appeal.A useful reference can be made to Saurav Jain Vs. M/s. A.B.P.; A.I.R. 2021Supreme Court 3673.5/11 AO 40 21 Corrected Or.odt14.I have carefully gone through the plaint. It was posed by therespondent that initially the respondent was not aware about the nature ofthe transaction between the parties. It is specifically averred in paragraphno. 3 that it was understanding between the parties to transfer the suitproperty nominally. It was represented to the respondent that to raise abank loan the subject matter was required to be transferred to the appellant.Paragraph no. 4 of the plaint categorically discloses that the respondent onlysigned the document without understanding the nomenclature of thedocument blindly relying upon the appellant. Thereafter, it is further statedthat the respondent was doubting the conduct and intention of theappellant. His foul play was disclosed and it was felt that the respondentwas being defrauded. There was a meeting of the well wishers and the elderbrother and the memorandum of understanding came to be executed. Itsparagraph no. 5 further discloses that the respondent learnt the mischief ofthe appellant when no loan was found to have been incurred by him. It isaverred that after 2018 appellant started avoiding to re-transfer theproperty. It is stated in paragraph no. 6 that on or about 28.3.2019 theownership of the respondent was questioned, which prompted therespondent to file suit for partition and possession.15.The meaningful reading of the plaint discloses that there was a causeof action. It is arguable that an educated person is executing a documentwhich is being registered also and claiming ignorance of nature of transfercannot be fathomed. However, it is not permissible to arrive at anyconclusion at this juncture of the proceedings. The case of the respondentthat appellant was his elder brother. He was being misrepresented and lateron he was being assured to re-transfer the property, cannot be ruled out atthis stage. Therefore, merely, on two occasions the registered instrumentswere executed cannot dislodge the probable theory of the respondentplaintiff. It has been categorically averred in the plaint that there was a foulplay on the part of the appellant, a fraud was practised and the property was6/11
Legal Reasoning
AO 40 21 Corrected Or.odtgot transferred by the respondent. It would require objective scrutiny. Therespondent will have to discharge burden to make out a case ofmisrepresentation and fraud, but at this juncture, it cannot be said that thereis absolutely no cause of action.16.It is pertinent to note that respondent has set up a theory of fraud andmala fides. These peculiar pleadings if proved during the course of trialwould vitiate the transaction between the parties and the instrument dated02.12.2014. The transaction needs to be examined in the wake of Section122 of Transfer of Property Act. The claim is that it is void ab initio.Therefore, I find substance in the submission of learned counsel Mr.Bhandari that respondent is not required to solicit relief of declaration inrespect of gift deed. This Court is not expressing any opinion on the merit ofthe matter. However, the finding recorded by the lower appellate Court thatobjective scrutiny is required to come to any conclusion cannot be faulted.17.I find that paragraph nos. 4 to 6 of the plaint would adequately makeout cause of action for filing suit. The respondent may or may not succeedin the suit and ultimately his suit may be found to be not tenable for want ofrelief of declaration but that cannot be a parameter to reject the plaint. Thearguable and attractive submissions for maintainability of suit would notcome within sweep of Order VII Rule 11(a) or (d) of CPC. No specificprovision has been pointed out by the appellant to show that suit isstatutorily barred or there is a prohibition to entertain the suit. I find thatthe parties will have to wait till the objective scrutiny is conducted in a fullfledged trial.18.Ground of limitation is also being pressed for rejection of the plaint.Plea of limitation is a mixed question of facts and law. Gift deed wasexecuted on 02.12.2014 and suit is filed on 04.04.2019. The purport of theplaint is that by playing fraud the suit property was being transferred infavour of the appellant. Considering Article 59 of the Limitation Act, it7/11 AO 40 21 Corrected Or.odtcannot be said that the limitation would commence immediately when giftdeed was executed on 02.12.2014. Going by the plaint on the said date eventhe respondent was not aware that it was a gift deed. It was being executedby misrepresentation and later on a fraud is found to have been played bythe appellant. Therefore, I am of the considered view that the plaint is notliable to be rejected under Order VII Rule 11(d) of CPC on plea of limitation.19.My attention is adverted to memorandum of understanding dated10.11.2017 produced on record. The averments in the document havesignificance to hold that the suit is within limitation and the theory of therespondent-plaintiff is probable. Considering the averments, there is areason to infer that the exact nature of transfer of the suit property was notknown and it was made to believe that brother was requiring the property toincur loan. When it was realized that a gift deed was being executed, bymemorandum of understanding it was assured that the subject matter wouldbe re-transferred. There is nothing wrong for the respondent in relying onthe understanding, than to rush to the Court for filing the suit. In myconsidered view, the memorandum of understanding corroborates therespondent’s theory that there was a cause of action and suit is withinlimitation.20.Learned counsel for the appellant has relied on the judgment ofDahiben Vs. Arvindbhai Kalyanji Bhanusali (Gajra) (D), Thr. Lrs. & Ors;2020 SAR (Civ) 793. The law laid down therein cannot be disputed. I havegone through paragraph No. 9, 12.1, 12.3, 14. The scope of order VII Rule11 has been explained and it is a exposition on the concept of cause ofaction. I am bound by the law.21.Further reliance is placed on the judgment of Rajendra Bajoria andothers Vs. Hemant Kumar Jalan and others; 2021 SCC OnLine SC 764. Ihave considered paragraph nos. 17 to 20. The principles laid down thereincannot be disputed and this Court is bound to follow the principles.8/11 AO 40 21 Corrected Or.odtHowever, facts of the present case are distinguishable. This judgment willnot help the appellant because the case at hand discloses that its not a shamlitigation and a full fledged trial is required.22.Further reliance is placed by the appellant on the Judgment of K.Akbar Ali Vs. K. Umar Khan and others; 2021 SCC OnLine SC 238. Theprinciples laid down in paragraph no. 5 are applied to the present case, theplaint cannot be rejected.23.Further reliance is placed on the judgment of Raghwendra SharanSingh Vs. Ram Prasanna Singh (dead) by L.Rs.; (2020) 16 Supreme CourtCases 601. My attention is adverted to paragraph no. 7 and 8. In that casethe execution of the gift deed was not disputed by the plaintiff. The plaintiffcontended that gift deed was an ostensible showy document and it was notbinding. It was sought to be challenged in the suit after 22 years. Theplaintiff and his brother, who were coowner did not challenge the gift-deedthough they had opportunity to do so. In that context the suit was held to bebarred by limitation. Such are not the facts in the present case. Therefore,no benefit of the judgment can be given to the appellant.24.Further reliance is placed on the latest judgment of RamisettyVenkatanna and another Vs. Nasyam Jamal Saheb and others; 2023 (8)SCALE 29. I have gone through paragraphs no.6 and 7 of the judgment. Inthat case by clever drafting of the plaint, relief in respect of partitionexecuted in the year 1993 was bypassed and suit was filed in the year 2014for declaration and cancellation of the sale-deeds. In that context, the suitwas held to be vexatious and the cause of action was found to be illusory.The facts are distinguishable and this judgment also cannot enure to thebenefit of the appellant.25.The learned counsel for the respondent relied on the judgment of G.Nagraj and another Vs. B.P. Mruthunjayanna and others; in Civil Appeal No.2737/2023, decided on 11.04.2023, to bolster submission that inconsistent9/11 AO 40 21 Corrected Or.odtaverment in the plaint would not be a sufficient ground to hold that theredoes not exist cause of action. It is further laid down that its not a parameteras to whether the plaintiff will ultimately succeed or not in the suit. I preferto follow the ratio in upholding the submissions made by the learnedcounsel for the respondent. Ultimately, it would be upon the objectivescrutiny the trial court will decide as to whether the suit is maintainable or itis within limitation or not. 26.Both sides vehemently argued on the decision rendered in CivilRevision Application no. 45/2020. Regular Civil Suit No. No. 108/2019 wasfiled for possession by the respondent against the appellant. The plaint wasalso sought to be rejected on the ground of want of cause of action and suitis barred by law. The application was rejected by the Trial Court andRevisional Court confirmed the order. On the ground of parity learnedcounsel for the respondent has pressed into service the judgment dated03.07.2021 passed by the learned Single Judge which is confirmed by theApex Court. Dismissal of Special Leave Petition without assigning specificreasons would not amount to confirmation. I find substance in thesubmissions of the learned counsel for the appellant Mr. Bajaj that thedecision cannot be said to be binding precedent. The latest judgments of theSupreme Court in the matters of Rajendra Bajoria, K. Akbar Ali, G. Nagraj,Ramisetty Venkatanna (supra) which are cited in the present matter werenot available either before Trial Court or the Revisional Court. The law ismore crystallized. Therefore, instead of blindly relying upon the judgment ofthe coordinate bench, I independently conducted scrutiny and examined asto whether the plaint is liable to be rejected or not. In the absence of theplaint and a relevant documents of Regular Civil Suit No. 108/2019, Iproposed to examine merits of the present case independently.27.For the foregoing reasons, I find that there is no perversity or illegalityin the impugned judgment and decree. The substantial question of law hasto be answered in affirmative. 10/11
Decision
AO 40 21 Corrected Or.odt28.I, therefore, pass following order.ORDER(i) Appeal from Order is dismissed.(ii)Pending Civil Application is disposed of. ( SHAILESH P. BRAHME, J.) mkd/-11/11