Ashok vs Suryabhan

A.I.S. Cheema, J.—The revision is admitted and finally heard with the consent of counsel for both sides.

The only question raised in this matter is of limitation. respondent Nos.1 to 3 are plaintiffs in Regular Civil Suit No.918/2008 before 1st Jt. Civil Judge, Senior Division, Aurangabad. They have brought suit for declaration of their share in the suit property Gat No.704 of Chikalthana and to declare sale deed dated 7.12.1971, executed in favour of Shalikram Jaiswal (the father of contesting defendants) by defendant No.1 Fakirchand as not binding on them. Plaintiffs have sought partition of their share.

For defendant Nos.2 to 5, application under Order VII Rule 11(b) and (d) of the CPC was filed, claiming that the suit was not properly valued and proper court fee had not been paid and that the same was barred by limitation. After hearing the parties, the 1st Jt. Civil Judge, Senior Division, Aurangabad directed payment of proper court fees as per market value, but found that the question of limitation was mixed question of law and fact, and thus, could 3 not be decided as preliminary issue.

Against the order, present revision is filed. Learned counsel for petitioner/ defendant pointed out that the sale deed was executed in favour of father of defendant Nos.2 to 5 and that the suit is hopelessly barred. According to him, under Article 59 of the Limitation Act, 1963, period of limitation is of three years from the date of knowledge; and under Article 60, for the wards, three years after attaining majority.

Learned counsel for respondent Nos.1 to 3- plaintiffs submitted that, if the plaint is perused, what is sought is only partition, and plaintiffs had stated that, at the time of Pola on 30.8.2008, they found that barricades and iron pipes of double bar and single bar had been installed on suit property, which was barren land and in possession of plaintiffs. It is claimed that, thus, they found obstruction and so, they enquired from respondent No.5 (defendant No.1). Defendant No.1 informed that he had not executed any sale deed and thus, they filed the suit for partition as defendant No.1 was not ready to give their share. The learned counsel supported the order passed by the trial Court.

In the matter of Hardesh Ores Pvt. Ltd. Vs. Hede and Company, the Supreme Court observed that, Order VII Rule 11 of CPC 4 is clear and unambiguous. The plaint can be rejected on the ground of limitation only where the suit appears from the statement in the plaint to be barred by any law. The observations of the Supreme Court in para 21 of the judgment are as under :

". . . . . It is well settled that whether a plaint discloses a cause of action is essentially a question of fact, but whether it does or does not must be found out from reading the plaint itself. For the said purpose the averments made in the plaint in their entirety must be held to be correct. The test is whether the averments made in the plaint if taken to be correct in their entirety a decree would be passed. The averments made in the plaint as a whole have to be seen to find out whether clause (d) of Rule 11 of Order VII is applicable. It is not permissible to cull out a sentence or a passage and to read it out of the context in isolation. Although it is the substance and not merely the form that has to be looked into, the pleading has to be construed as it stands without addition or subtraction of words or change of its apparent grammatical sense."

Keeping above in view, the present plaint needs to be considered.

(A) If the plaint is perused, it can be seen that, plaintiff No.1 Suryabhan is son of Fakirchand (defendant No.1), plaintiff No.2 Rangubai is wife of Fakirchand and plaintiff No.3 Leelabai is daughter of Fakirchand. Plaintiffs No.1 and 2 claim to be residing at Chikalthana. The suit property Gat No.704 is also situated at Chikalthana. The plaint claims that, Gat Nos.704, 210 and 212 at Chikalthana are ancestral agricultural lands, which came to the share of defendant No.1. Plaintiffs claim 5 partition of Gat No.704 and to reserve right for other properties under Order II Rule 2 of the CPC.

The plaint claims that, the plaintiffs and defendant No.1 are residing separately since 10-15 years and that the defendant No.1 is residing at Warud Kazi. Plaint mentions that, the land in question is lying vacant and that it was in actual and physical possession of the plaintiffs. Para 3 of the plaint mentions that, at the time of Pola of 2008 i.e. 30.8.2008, plaintiffs saw some persons installing double bar/ single bar etc. on the suit property and on enquiry, they came to know that Shalikram Jaiswal had allegedly got executed sale deed of suit land in 1971. They claim that they approached defendant No.1 but he said that he did not sell the property to Shalikram Jaiswal or any other person. It is claimed that, the partition was sought from defendant No.1 but he avoided. Plaintiffs claim that, they have 3/4th share in the suit land. Defendant No.1 had no right to execute sale deed and land transferred in the name of defendant Nos.2 to 5 is illegal, ultra vires and not binding on the plaintiffs.

(B) It is claimed that the mutation entry effected in the name of deceased Shalikram or in the name of defendant Nos.2 to 5 is not binding on the plaintiffs. Defendants had got mutated the revenue record without knowledge of plaintiffs. Defendants 6 got threat of dispossession and creating third party interest on 10.9.2008 and thus, cause of action for the suit. Prayers made in the suit are as under :

(a) Suit may be decreed with costs;

(b) It be declared that these plaintiffs are having share, interests, ownership, title to the extent of 3/4th out of 60 R. land of village Chikalthana.

(c) It be also declared that the sale deed No.2902, dated 7.12.1971 allegedly got executed in favour of deceased Shalikram Ruplal Jaiswal and the mutation entry effected in the name of deceased as well as defendants No.2 to 5 is not binding on these plaintiffs while passing appropriate decree;

(d) The decree of partition be passed on equal equality basis, wherein the land be partitioned and his 3/4th share be given to the plaintiff, out of land Gut No.704 of village Chikalthana, Aurangabad.

(e) Defendant No.2 to 5 be restrained from creating third party interest and also causing any style of interference, obstruction and disturbance in possession of the plaintiff and also not to change nature on suit property by any manner while passing decree for perpetual injunction;"

Learned counsel for petitioner- defendant pointed out the sale deed, which is of 1971 and mutation entry, which was recorded on 1.7.1972. According to the learned counsel, since that time, in suit property name of Shalikram and then defendant Nos.2 to 5 had been in the record. According to the learned counsel, by intelligent drafting of the plaint the limitation is tried to be avoided.

At the time of arguments, learned counsel for respondents- plaintiffs submitted that, in the trial Court the recording of evidence of the plaintiffs'' side is already over. Looking to the plaint as it is, the suit claims in nutshell that the plaintiffs had been in possession of the suit property and only on 30.8.2008 when double bar and single bar were brought to the suit property, they came to know about the rights created by defendant No.1 and thus, plaintiffs claim the partition in suit property and injunction that their possession should not be disturbed. The trial Court found the question of limitation as a mixed question of law and facts. Looking to the fact that the evidence of plaintiffs'' side is already recorded, it will be appropriate that the question of limitation is decided in the suit itself.

Learned counsel for the petitioner- defendant argued that the other properties of the joint family have not been put 8 into hotchpotch for partition. The plaint claims that, the plaintiffs reserved their right for other properties as contemplated under Order II Rule 2 of the CPC. Under Order II Rule 2 of the CPC, there can be relinquishment of portion/ part of claim. Reservation is not contemplated. As the evidence of plaintiffs'' side is already stated to have been over, while deciding the matter, the trial Court can consider even this aspect regarding impact on the suit if all the properties of the family are not brought in hotchpotch for partition affecting the rights of defendants.

Looking to the stage of the suit in the trial Court, interference now in the impugned order is not called for. The revision application is disposed of. No order as to costs.