High Court

Legal Reasoning

{1} CRA 132.23 R.odtIN THE HIGH COURT OF JUDICATURE AT BOMBAYBENCH AT AURANGABADCIVIL REVISION APPLICATION NO. 132 OF 2023GEODESY PROPERTY CONCEPT AND OTHERSVERSUSJAMUNABAI W/O. PRATAP GELOT AND OTHERS.…Mr. L.D. Vakil, Advocate for applicants,Mr. A.D. Kawliwal, Advocate for respondent Nos. 1 to 5. CORAM :S.G. CHAPALGAONKAR, J. DATE : 24th FEBRUARY, 2025. O R D E R :-1.Present Civil Revision Application takes exception to theorder dated 9.6.2023 passed by 3rd Joint Civil Judge (J.D.) Gangapur,below Exh.31 in RCS No. 354 of 2026, by which prayer of applicants/original defendant Nos. 2 to 5, seeking rejection of plaint under Order 7Rule 11 of CPC, came to be declined.2.Respondents filed RCS No. 354 of 2021 seeking a decree ofpartition and separate possession in respect of suit properties i.e. landGat No. 128 situated at village Jambhala, Taluka Gangapur, Dist.Aurangabad. It is contention of the plaintiffs that suit land was originallyowned by Dhagu Pawar, who died on 1.5.1998 leaving behind plaintiffsand wife Ratnabai. His son Ramdas per-deceased him. Ramdas diedleaving behind two daughters and wife Jamunabai. Lateron, Ratnabaiand Jamunabai i.e. wife of Dhagu and wife of Ramdas expired. Accordingto plaintiffs, in the year 2020, they noticed that name of defendant No.1 {2} CRA 132.23 R.odtis mutated in record of rights of the suit property vide mutation entry No.893 on the basis of sale deed dated 8.3.1993. Lateron, there are mutationentries of subsequent transfers and lastly, mutation entry has beeneffected in the name of defendant No.2 on the basis of sale deed dated21.9.2010.3.The plaintiff obtained certified copies and noticed thatRatnabai w/o. Dhagu Pawar executed registered sale deed dated8.3.1993 in favour of defendant No.1 Malti Kadam, who lateron,transferred the land in favour of defendant Nos. 2 to 5 under registeredsale deed dated 21.9.2010. According to plaintiffs, Ratnabai was agedabout 75 years at the time of execution of sale deed. She was illiteratelady and there was no possibility that she could have executed sale deedin favour of defendant No.1. They alleged that sale deed is false and notbinding upon on them. Plaintiffs further pleaded that plaintiffs havesubstantive rights and share in the property and Ratnabai Pawar was notlegally entitled to sale or alienate the same in exclusion of right ofplaintiffs. They asserts that sale deed executed by Ratnabai is ineffectiveand consequential sale transactions are also invalid. When plaintiffs gotknowledge about aforesaid transactions, suit has been instituted.4.Defendant Nos. 2 to 5 appeared in the suit and filed writtenstatement, so also, filed application below Exh.31 under Order 7 Rule 11of CPC, seeking rejection of plaint on following two grounds :-(I)Firstly, suit is based on illusory cause of action;(II)Secondly, suit is hopelessly barred by limitation. {3} CRA 132.23 R.odt5.Plaintiffs filed reply and refuted the prayer in theapplication. The trial court, after hearing respective parties, rejected thedefendant’s application vide impugned order dated 9.6.2023.6.Mr. L.D. Vakil, learned advocate appearing for applicantsubmits that Dhagu Jayram Pawar, original owner of land expired in theyear 1988. Name of Ratnabai was mutated being legal heir of deceasedvide mutation entry dated 16.6.1988. He invites attention of this Courtto the 7 x 12 extract, which depict that name of Ratnabai was appearingas owner. Thereafter, Ratnabai executed sale deed dated 8.3.1993 infavour of defendant No.1. The name of defendant No.1 was entered inrecord of rights vide mutation entry No. 893 dated 22.2.1994.Thereafter, defendant No.2 purchased land from defendant No.1 underregistered sale deed dated 21.9.2010. Eventually, mutation entry No.1902 dated 7.1.2011 has been sanctioned. Thereafter, defendant Nos. 3to 5 purchased suit land under registered sale deeds executed inFebruary and March, 2020.7.Mr. Vakil would further submit that registered sale deeds aswell as mutation entries have presumptive value and shall be treated asnotice to the public at large. Plaintiff Nos. 1 to 3 are daughters of lateDhagu Pawar and they had no legal right to inherit his property of underthe Hindu Succession Act. He would further submit that alienation madeby Ratnabai in the year 1993 is not challenged in the suit, nor suchchallenge would be within limitation. Even subsequent sale transactionsare not challenged. The cause of action shown in the suit is illusory andupon plain reading of the contents of the plaint, suit can be termed as {4} CRA 132.23 R.odt“Vexatious” and hence, liable to be dismissed in exercise of jurisdictionunder Order 7 Rule 11 of CPC.8.Per contra, Mr. Kasliwal, learned advocate for respondentssupports the impugned order contending that question of limitationwould be a mixed question of facts and law. A specific cause of actionhas been pleaded in the plaint. Even the plaintiffs have pleaded date ofgetting knowledge as to the execution of sale deed by Ratnabai.Therefore, suit is well within limitation.9.Before entering into controversy, it would be appropriate tocull-out parameters for exercise of jurisdiction under Order 7 Rule 11 ofCPC from exposition of law by Supreme Court through series ofjudgments.[i]The remedy under Order 7 Rule 11 is regarded as special remedy empowering the courts to summarily dismiss the suit at the threshold on any of the grounds contained in Order 7 Rule 11. [ii]It is the duty of the Court to see, whether the plaint disclosescause of action on the basis of averments made in the plaint, in conjunction with documents relied upon. [iii]On meaningful reading of the plaint if it is found that suit is manifestly vexatious and without merit, does not disclose a right to sue, the Court is justified to reject the plaint. [iv]The court should also bear in mind that clever drafting of theplaint or illusions created for cause of action, does not camouflage while ascertaining clear right of the plaintiff. {5} CRA 132.23 R.odt[v]Any illusory cause of action creating bogus litigation shall benipped in bud. [vi]Similarly, Court must bear in mind suppression of material facts and attempts of abuse of process of court.[vii]The note of caution needs to be taken that the issues, which require adjudication on trial shall be not be touched while exercising jurisdiction under Order 7 Rule 11 of C.P.C. [Viii]The defence put forth in written statement or documents tendered by way of defence shall not be considered. [ix]The decision must be based on pleadings and documents tendered with plaint itself.10.In the light of aforesaid parameters, it would be necessary tohave a look to the pleadings in the plaint. Plaintiffs have pleaded thatDhagu Pawar was original owner of land. He died leaving behind wifeRatnabai, his three daughters (plaintiff Nos. 1 to 3) and wife and twodaughters of pre-deceased son Ramdas. Daughters of Ramdas arearrayed as plaintiff Nos. 4 and 5. Plaintiffs are claiming right by way ofsuccession in the suit land being daughters and grand-daughters ofDhagu Pawar. It appears on 8.3.1993, Ratnabai executed sale deed infavour of defendant No.1. Thereafter, defendant No.1 transferredproperty under sale deed dated 22.9.2010. Plaintiffs pleaded that in theyear 2020, they came across mutations recorded in the name ofdefendants.11.The aforesaid chain of events would demonstrate thatplaintiffs being Class I heirs of deceased Dhagu Pawar certainly holdright of inheritance in the suit property. The mutation entry No. 74 {6} CRA 132.23 R.odtrecorded immediately after death of Dhagu Pawar shows that names ofRatnabai, wife of Dhagu, his three daughters and daughter in law havebeen mutated. Lateron, 7 x 12 extract shows name of Ratnabai only inthe column of ownership. On the basis of said entry, she alonetransferred suit property under the sale deed dated 8.3.1993 in favour ofdefendant No.1. Plaintiffs being Class I heirs of Dhagu Pawar arecertainly entitled for the right of inheritance in the property. From thepleadings in the plaint, it can be gathered that plaintiff Nos. 4 and 5 i.e.daughters of pre-deceased son Ramdas were minors and during theirminority, their grandmother Ratnabai transferred suit property.Evidently, all plaintiffs have a right to assail the transaction made byRatnabai.12.True, that plaintiffs assert that they got knowledge ofaforesaid transaction in year 2020, however, whether cause of action isfictitious or not; whether they were aware about the exclusion of theirright to seek partition, would be questions to be decided at trial. On thebasis of pleadings in the plaint or documents annexed thereto, nopresumption can be drawn that plaintiffs had knowledge about thetransaction of 1993 made by Ratnabai. At this stage reference can begiven to observations of Supreme court in case of Chottanben VsKirtibhai Thakkar reported in (2018)6 SCC 422 and Daliben Valjibhaiand others Vs Prajapati Kodarbhai Kacharabhai and another 2024 SCCOnline 4105.The observations in case of Chottanben (supra) in Para. 19are as under :-“19. In the present case, we find that the appellant- {7} CRA 132.23 R.odtplaintiffs have asserted that the suit was filed immediatelyafter getting knowledge about the fraudulent sale deedexecuted by original Defendnts 1 and 2 by keeping them inthe dark about such execution and within two days from therefusal by the original Defendants 1 and 2 to refrain fromobstructing the peaceful enjoyment of use and possession ofthe ancestral property of the appellants. We affirm the viewtaken by the trial court that the issue regarding the suitbeing barred by limitation in the facts of the present case, isa triable issue and for which reason the plaint cannot berejected at the threshold in exercise of the power underOrder 7 Rule 11 (d) CPC.”13.Article 110 of the Limitation Act applies to claim of partition,which reads thus :-ArticleDescription of SuitLimitationTime from which period beginsto run110By a person excluded from ajoint family property toenforce a right to sharetherein.Twelve yearsWhen the exclusion becomesknown to the plaintiff.Plain reading of aforesaid provision shows that limitationruns from the date when exclusion becomes known to plaintiffs.Therefore, unless it is demonstrated that plaintiffs had express or impliedknowledge of exclusion of their right, limitation would not run againstthem. It is for the defendants to show that more than 12 years prior tofiling of the suit, plaintiffs were aware about the exclusion of their rightin the joint family property. Therefore in facts of this case issue oflimitation becomes triable and needs to be answered accordingly. {8} CRA 132.23 R.odt14.In view of aforesaid factual and legal aspects, no error canbe found in impugned order passed by trial court thereby rejecting theapplication below Exh.31.15.In the result, civil revision application stands rejected.[S.G. CHAPALGAONKAR, J] grt/-3