Shivprasad vs Dinesh Kumar and Others

Rohit Arya, J.—This revision petition is directed against the order dated 2/3/2015 passed by the trial court in civil suit No. 33A/2013, whereby application under Order VII Rule 11 CPC filed by the defendant has been dismissed.

Facts relevant for disposal of this revision petition are to the effect that plaintiffs filed a suit for declaration and permanent injunction inter alia contending that vide registered sale deed dated 31/5/1993 the suit land was transferred in the name of their father, however, in the sale deed while describing the land instead of survey no.1802/2, survey no.1802/3 has been mentioned, however, the suit land is in possession of the plaintiffs. Therefore, for correction of survey number the plaintiffs had requested the defendants. Defendants denied to carry out correction in the sale deed on 20/3/2013. That gave rise to cause of action to the plaintiffs, who are the successors of the original vendee-Purshottam, to file the instant suit.

Defendants have filed an application under Order VII Rule 11 CPC saying that during the lifetime Purshottam, in whose favour the sale deed was executed, never filed any application for correction, therefore, the present plaintiffs have no right to seek the aforesaid correction in the sale deed. That apart, it is submitted that for such relief the suit is also barred by time, as under Article 59 of the Limitation Act such nature of suit could have been filed only within three years from the date of execution of the sale deed. It is further submitted that civil suit No. 10A/2002 was withdrawn by the plaintiffs under Order XXIII Rule 1 CPC without liberty of the trial court to file fresh suit. With the aforesaid submissions, it was prayed that the suit be dismissed.

Plaintiffs filed reply to the application and denied that plaintiffs have no right to file the instant suit. It is also denied that the suit is barred by time. It is submitted that cause of action to file aforesaid suit had arisen on 20/3/2013 when defendants denied to carry out correction in the sale deed, therefore, the suit is well within time under Article 58 of the Limitation Act. It is further submitted that plaintiffs have not filed the suit for seeking declaring the sale deed as null and void or cancellation thereof, instead for correction, therefore, the suit not being for cancellation of sale deed, shall not be hit by Article 59 of the Limitation Act, as alleged. That apart, it is further submitted that there is no dispute that the sale deed was executed by defendant no.1 upon receipt of consideration. As such, fact of execution of sale deed is not denied. Further, as regards earlier suit, i.e. civil suit No. 10A/2002, it was submitted that the earlier suit was in fact and in effect filed against defendant no.1 therein i.e. Nagarpalika Ambah for declaration and possession with further relief of injuncting the defendants not to carry out construction over the land of the ownership of plaintiffs. Therefore, the relief of the nature pleaded in the suit was claimed against the Nagar Palika, as per para 6 of the plaint. As such, the aforesaid suit was entirely for a different purpose and since by efflux of time construction was completed, therefore, the suit was disposed of.

The trial court considered the aforesaid submissions advanced by the parties and found that the earlier suit was altogether for different purpose on a different cause of action seeking injunction against the municipal corporation, Ambah not to carry out construction over the suit land, as the instant suit is for limited purpose for carrying out correction in the survey number upon refusal by the defendants giving rise to cause of action on 20/3/2013. As regards limitation, the trial court has found that the suit is not for cancellation of sale deed or for declaring the sale deed null and void, therefore, Article 59 of the Limitation Act has no application. The suit was, accordingly, found to be within time. As the suit is at preliminary stage, therefore, the effect of Order XXIII Rule 1 of CPC is ordered to be considered after parties lead evidence as the same cannot be addressed upon on mere assertions under Order VII Rule 11 CPC. With the aforesaid, trial court dismissed the application.

Having perused the order passed by the trial court, this Court is of the opinion that the trial court has not committed any illegality or any jurisdictional error warranting interference under revisional jurisdiction under Section 115 CPC. Counsel for the petitioner/defendant has relied upon the judgment in State of M.P. Vs. Najmuddin and Others, , however, factual matrix in the case in hand is altogether distinguishable. Accordingly, the Civil Revision sans merits is dismissed.