Limitation; Heirs of Decd. Maniben Vs. Heirs of Decd. Dwarkabhai Naranbhai Ishvarbhai [Gujarat High Court, 02-09-2016]

Civil Procedure Code, 1908 – Order 7 Rule 11 (d) – Rejection of Plaint – The present suit is a case of shrewd and crafty drafting, having no definite cause of action, the averments are made of assumptions and presumptions and a meritless claim is placed for consideration which is hopelessly time barred – the plaint is rightly rejected by both the courts below.

Suit


IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

CORAM: HONOURABLE MR.JUSTICE Z.K.SAIYED

Date : 02/09/2016

SECOND APPEAL NO. 109 of 2016 With CIVIL APPLICATION NO. 4522 of 2016 In SECOND APPEAL NO. 109 of 2016

HEIRS OF DECD. MANIBEN D/O NARANBHAI ISHVARBHAI AND WD/O KANTILAL NATHALAL PATEL….Appellant(s) Versus HEIRS OF DECD. DWARKABHAI NARANBHAI ISHVARBHAI & 3….Respondent(s)

Appearance: MR SN SOPARKAR, SENIOR COUNSEL with MR PRATIK Y JASANI, ADVOCATE for the Appellant(s) No. 1 – 1.3.4 , 1.4 – 1.5 MR ANSIN DESAI with MR. ZALAK B PIPALIA, ADVOCATE for the MR MIHIR THAKOR, SENIOR COUNSEL with MS MINI M NAIR, ADVOCATE

JUDGMENT

1. The appellants have filed present appeal under Section 100 of the Civil Procedure Code with Civil Application praying to stay the implementation, operation and execution of the order dated 2.9.2014 passed by the learned 5th Additional Senior Civil Judge, Ahmedabad (Rural) below Ex.15 in Regular Civil Suit No.200 of 2014 as well as the order dated 30.4.2016 passed by the learned 8th Additional District Judge, Ahmedabad (Rural), Mirzapur in Regular Civil Appeal No.34 of 2014, pending the admission, hearing and final disposal of the appeal.

2. As the present proceedings arise out of an application under Order 7 Rule 11(d) of the Civil Procedure Code, 1908, and the question remains to be answered by this Court and thus with the consent of both the parties the matter is taken up for final hearing. Hence rule.

3. The appellants herein are the original appellants – plaintiffs and the respondents herein are the original respondents – defendants in the appeal, wherein the appellants have challenged the order dated 2.9.2014 passed by the learned 5th Additional Senior Civil Judge, Ahmedabad (Rural) below Ex.15 in Regular Civil Suit No.34 of 2014. The learned Trial Court vide order dated 2.9.2014 has been pleased to allow Ex.15 filed by the respondents No.1.2, 1.2.1, 1.2.2, 1.2.3 and 1.6.1 to 1.6.4 invoking provisions of Order 7 Rule 11 of the Civil Procedure Code, 1908. The learned Appellate Court vide order dated 30.4.2016 has been pleased to confirm the order passed by the learned Trial Court.

4. Heard Mr.S.N.Soparkar, learned Senior Counsel appearing with Mr.Pratik Jasani, learned counsel for the appellants. He has submitted that Smt.Maniben Naranbhai Patel happens to be the mother of the appellants and legal heir of deceased Naranbhai Ishvarbhai Patel, who died on 10.3.1963. Upon demise of Naranbhai, names of his heirs came to be mutated in the revenue record. The mother of the appellant being the legal heir of Naranbhai, her name was also mutated in the revenue records. The mother of the appellants was having one­third share in the estate of deceased Naranbhai Ishvarbhai Patel.

5. He has submitted that during the lifetime of the mother of the appellants and after the demise of Naranbhai Ishvarbhai Patel, the brothers of the mother of the appellants, namely, Shri Dwarkabhai and Shri Vitthalbhai used to mange the affairs of the family as well as the estate of deceased Naranbhai Ishvarbhai Patel, which includes various parcels of land. That, the uncles of the appellants used to regularly part with one­ third share belonging to the mother of the appellants by distributing the income of the agricultural produce pertaining to the land belonging to deceased ­ Naranbhai Ishvarbhai Patel. It is submitted that the uncles of the appellants often used to come and take signature of the mother of the appellants for various transactions.

6. He has submitted that the mother of the appellants passed away on 18.09.2005. That, in past, the appellants were sharing a strong bonding with their uncles who used to visit the appellants on frequent basis, however, on account of death of the mother, the uncles of the appellants stopped coming to the residence of the appellants and gradually, discontinued the relations. That, not only the uncles of the appellants discontinued the relations, but they also stopped giving / parting the monetary share which they used to give to the mother of the appellants while she was alive. That, though the appellants tried to inquire about their share, the uncles of the appellants refused to entertain any of the request made by the appellants.

7. He has submitted that the appellants were aware about one parcel of land being block no.490 situated at Ahmedabad. That, the appellants made an application before the revenue authorities for getting their names mutated in the revenue record in the place of their mother. That, accordingly, the said entry was mutated on 27.05.2010 vide entry no.4287. The appellant, thereafter, requested their uncles to give necessary details with respect to the parcels of land in which their mother was having one­third share, however, the uncles of the appellants did not cooperate and rather refused to part with a penny.

8. He has submitted that the appellants, thereafter, took recourse of the Right to Information Act, 2005 and procured informations with respect to the estate of late Shri Naranbhai Ishvarbhai Patel. That, upon going through the relevant documents, the appellants came to know that the name of the mother of the appellants was mutated in revenue records vide entry no.1165 being legal heir of Naranbhai Ishvarbhai Patel. That it also came to the knowledge of the appellants that within two days from the date of death of Shri Naranbhai Ishvarbhai Patel, an another entry being entry no.1166 has been mutated in the revenue records recording that the mother of the appellants has waived / relinquished her rights from the estate of deceased Naranbhai Ishvarbhai Patel.

9. He has submitted that upon perusal of the statement of the mother of the appellants alleged to have been given before the concerned revenue officers bears a different signature than the signature which the mother of the appellants ordinarily used to make. That, upon comparing with the signatures, the appellants came to know that the signatures made on the alleged statement given by the mother of the appellants is fabricated one and in fact, she has never relinquished her right in favour of her brothers.

10. He has submitted that no sooner they came to know about the above referred fraud committed by the uncles of the appellants, they filed an appeal being RTS Appeal No.457 of 2012 before the learned Deputy Collector challenging entry no.1166. The said appeal came to be rejected vide order dated 21.12.2013 and being aggrieved by the said order, the appellants have preferred Revision Application before the learned Collector.

11. He has submitted that while the revenue proceedings were on the verge of finalization, the appellants came across an advertisement issued on behalf of the uncles of the appellants demanding title clearance of various parcels of land in which the appellants were having their one­third share through their mother. It is submitted that the appellants, thus, came to know that the respondents herein in active connivance with each other, for avoiding partition and for duping the rights of the appellants and to avoid giving any share from the estate of deceased Naranbhai Ishvarbhai Patel, has decided to dispose of the parcels of the land. The appellants, thus, approached their uncles with a request to provide one­third share from the estate of deceased Naranbhai Ishvarbhai Patel, however, no heed was paid to such genuine request made by the appellants.

12. He has submitted that the appellants were constrained to file a suit before the learned Additional Senior Civil Judge, Ahmedabad being Regular Civil Suit No.200 of 2014 with a prayer of partitioning the estate of deceased Naranbhai Ishvarbhai Patel and to hand over one­third share to the appellants being the legal heir of deceased Maniben Naranbhai Patel. That, the appellants also made a prayer to declare that there has been no release of rights in favour of the respondents herein by the appellants, as recognized under the Hindu Succession Act, after the demise of Shri Naranbhai Ishvarbhai Patel. The appellants also sought a mandatory injunction against the respondents for not transferring, disposing, alienating the estate of deceased Naranbhai Ishvarbhai Patel, as narrated in the Scheduled appended to the suit.

13. He has submitted that upon filing of the above­referred suit, the learned trial Court was pleased to issue notice to all the respondents. That , upon being served, filed their appearance. That, the respondents no.1.2, 1.2.1, 1.2.2, 1.2.3 and 1.6.1 to 1.6.4 filed an application being Exh.15 invoking provisions of Order VII Rule 11 of the Code of Civil Procedure, 1908, inter alia, contending that the suit filed by the appellants is hopelessly time barred, the suit does not disclose a specific cause of action, the suit is filed by a Power of Attorney who is not joined as party, etc.

14. He has submitted that, the appellants, thereafter, filed a detailed reply to Ex.15 filed by the respondents. That, the appellants, in their reply, negated all the assertions made by the said respondents and further contended that even if the averments made in Ex.15 be accepted to be true, then also, the same would not persuade the learned trial Court to dismiss the suit, inasmuch as, all the contentions raised by the said respondents can be proved only by leading evidence as the issue which has been agitated is a mixed question of law and facts. The appellants also raised various legal contentions to justify that the application filed by the respondents is only with a view to buy time so that they can change hands with the land in question.

15. He has submitted that the learned trial Court, after hearing the parties, vide order dated 02.09.2014, was pleased to accept and allow application Ex.15 filed by the respondents and thereby, dismissing the suit filed by the appellants. That, the brief grounds on which the learned trial Court has allowed Ex.15 filed by the respondents are set out as under:­

(i) Naranbhai Ishvarbhai Patel died in the year 1963, the mother of the appellants died in the year 2005 and during the lifetime of the mother of the appellants, the entry in question being entry no.1166 has remained unchallenged and the same has been challenged after a span of 51 years by the appellants herein and, therefore, the suit is barred by limitation.

(ii) The challenge to entry no.1166 by the appellants has failed and the competent authority has dismissed the appeal without even condoning the delay.

(iii) The appellants are unable to explain as to how the limitation is a mixed question of law and fact.

(iv) Document which does not create any interest in an immovable property does not require registration and even otherwise, it is a family arrangement which needs no registration for enforcement.

(v) The mother of the appellants has died in the year 2005 and 9 years thereafter, the present suit is preferred which is also beyond limitation.

16. He has submitted that after the learned trial Court was pleased to pronounce the order dated 02.09.2014, the appellants have preferred an application seeking suspension of the implementation of the order dated 02.09.2014 for a period of 30 days as the appellants are desirous to challenge the said order before the appellate forum. That, the said application of the appellants came to be allowed by the learned trial Court and the order dated 02.09.2014 was stayed for a period of 30 days.

17. He has submitted that the appellants being aggrieved by the order dated 02.09.2014 passed by the learned trial Court, preferred an appeal before the learned Appellate Court which came to be registered as Regular Civil Appeal No.34 of 2014. That, the said appeal filed by the appellants was rejected on 30.04.2016, wherein the learned Appellate Court approved the findings given by the learned trial Court. That, the brief grounds on which the learned Appellate Court was pleased to dismiss the appeal filed by the appellants are briefly set out as under:

(i) The entry no.1166 has been challenged belatedly by the appellants after the demise of their mother.

(ii) That, the entry in question is more than 30 years old as the same being produced from the Government record. As per section 90 of the Evidence Act, the signatures on the said documents is presumed to be genuine.

(iii) Registration of a document, relinquishing right from a particular property, being a statement is not mandatory.

(iv) That entry is challenged after a span of 51 years and, therefore, the reasonings are given by the learned trial Court.

18. He has submitted that after the learned Appellate Court was pleased to pronounce the order dated 30.04.2016, the appellants have preferred an application seeking suspension of the implementation of the order dated 30.04.2016 for a period of 30 days as the appellants are desirous to challenge the said order before this Court. That, the said application of the appellants came to be allowed by the learned Appellate Court and the order dated 30.04.2016 was stayed for a period of 30 days.

19. He has submitted that respondents no.3 and 4 have been subsequently added to the appeal proceedings, inasmuch as, they have purchased the property pending the suit proceedings. That the said respondents have challenged the order passed by the learned Appellate Court for joining them as a party respondents before this Court by way of filing Special Civil Application No.3793 of 2016, however, this Court has been pleased not to interfere with the order allowing the respondents to be joined as party defendants/respondents and vide order dated 09.03.2016, was pleased to direct the learned Appellate Court to dispose of the appeal proceedings within a span of six months.

20. He has submitted that the impugned orders are passed on erroneous assumptions, are of excess jurisdiction and violative of principles of natural justice, arbitrary, capricious and arrived at a finding which is perverse and based on no material. He has submitted that the learned Courts below have erred in concentrating on the first prayer made by the appellants and have ignored considering the remaining two prayers made by the appellants in the suit. He has submitted that without admitting that any of the prayers made by the appellant is barred by limitation, but assuming the same to be barred by limitation for the sake of arguments, even then, the prayers No.10(B) and 10(C) seeking partition in the estate of deceased Naranbai Ishvarbhai Patel as well as seeking mandatory injunction against the respondents would certainly fall within the period of limitation which has accrued in the year 2013 and the suit in question has been filed in the year 2014.

21. He has submitted that both the learned Courts below have erred in dismissing the suit filed by the appellants by ignoring Article 110 of the Limitation Act which speaks about the limitation in case a person is excluded from a joint family property to enforce a right to share. He has submitted that considering Article 110 the limitation starts to run when the exclusion becomes known to the plaintiffs. He has submitted that for the purpose of Article 110, there has to be appositive act or conduct by which the exclusion from joint property becomes known to the plaintiff. In the present case there is absolutely no evidence to suggest that the appellants have been excluded from the property of joint family for more than 12 years prior to institution of the suit. He has submitted that considering Article 110 read with the averments made by the appellants in the suit, the appellants came to be know about their exclusion only in the year 2013 when the appellants came across the notice of title clearance issued by the respondents herein clarifying the intention to exclude the appellants from their share of the property of deceased Naranbhai Ishvarbhai Patel. He has submitted that since the limitation has started from the year 2013, the instant suit filed by the appellants which is for partition has been filed in the year 2014, the same is well within limitation and, therefore, dismissal on the ground of limitation is illegal in nature.

22. He has submitted that the appellants have never questioned Entry No.1166 which is a subject matter of further challenge before the learned Collector or before the learned Principal Secretary. He has submitted that the pleadings about relinquishment made by the mother of the appellants in the year 1963 was made for the purpose of demonstrating the conduct of the respondents and by no stretch of imagination the said averments can be read for the purpose of computing the period of limitation. He has submitted that the cause of action for the appellants to file the suit arose only in the year 2013 and not in the year 1963. He has submitted that any relinquishment of right cannot be on the basis of oral statement, but the same has to be reduced into writing and the said document also needs to be registered, otherwise the same would not be considered to be a valid document considering the provisions of the Registration Act. He has submitted that the learned Courts below have erred in taking recourse of Section 90 of the Indian Evidence Act as the same is having no relevant to the facts of the present case.

23. In view of above submissions he has relied on the decisions in the case of