Case: RAGHWENDRA SHARAN SINGH Vs. RAM PRASANNA SINGH(DEAD)

3. The facts leading to the present appeal in nutshell are as under:That the original plaintiff and his brother Sheo Prasanna Singh jointly purchased the suit land in question in the year 1965. That the original plaintiff, who is the father of the appellant herein¬original defendant, and his late brother Sheo Prasanna Singh executed a registered deed of gift in favour of the appellant herein on 06.03.1981 gifting the suit land and put him in possession thereof. That the appellant herein-original defendant instituted one T.S. (Partition) Suit No. 203 of 2001 against his brothers and others for partition of the joint Hindu family properties. That the respondent herein-original plaintiff in the present suit was also joined as defendant No. 10 in the same suit. It appears that the summon along with a copy of the plaint of the aforesaid partition suit was allegedly served on the plaintiff¬ respondent herein on 21.12.2001. That Sheo Prasanna Singh died on 15.12.2002. That thereafter, the respondent herein¬ original plaintiff alone filed T.S. No. 19 of 2003 against the appellant herein¬original defendant in the Court of Munsif, Danapur for a declaration that the deed of gift dated 06.03.1981 executed in favour of the appellant herein is showy and sham transaction and no title and possession with respect to the gifted property ever passed to the appellant¬original defendant and hence the same is not binding on him. A prayer was also made for confirming his possession over the suit property and in case he is found out of possession, then a decree for recovery of possession be passed3.1 That the appellant herein¬original defendant after filing his written statement, filed an application under Order 7 Rule 11 r/w Order XIV, Rule 2 CPC for rejection of the plaint on the ground that the suit is clearly barred by law of limitation, as the deed of gift having been executed on 06.03.1981, the suit under Article 59 of the Limitation Act ought to have been filed within three years of the deed of execution of the gift deed, whereas the same has been filed after more than 22 years of the execution of the deed. It was also further averred that the suit is not maintainable in view of Sections 91 and 92 of the Evidence Act as well as Section 47 of the Registration Act3.2 That the Munsif, Danapur rejected the said application vide order dated 28.08.2006 on the ground that from the perusal of records and other documents, for determining the question of Limitation, oral evidence are required to be taken into account. Therefore, the question is to be adjudicated only after the evidence are led by both the parties3.3 Feeling aggrieved and dissatisfied with the order passed by the Munsif, Danapur rejecting the Order 7 Rule 11 application, the appellant herein-original defendant filed a revision application before the High Court. By the impugned judgment and order, the High Court has dismissed the revision application and has confirmed the order passed by the Munsif, Danapur rejecting the Order 7 Rule 11 application. Hence, the present appeal at the instance of the original defendant.

Reasoning:
6.1 At the outset, it is required to be noted that the plaintiff has instituted the suit against the defendant for a declaration that the defendant has acquired no title and possession on the basis of the deed of gift dated 06.03.1981 and that the plaintiff has got title and possession in the said property. In the suit, the plaintiff has prayed for the following reliefs:A. That on adjudication of the facts stated above, it be declared that the defendant acquired no title and possession on the basis of the said showy deed of gift dated 06.03.1981 and the plaintiff has got title and possession in the said propertyB. That it be declared that the said showy Deed of Gift dated 06.03.1981 is not binding upon the plaintiffC. That the possession of the plaintiff be continued over the suit-property and in case if he is found out of possession, a decree for recovery of possession be passed in favour of the plaintiffD. That the defendant be restrained by an order of ad¬interim injunction from transferring or encumbering or interfering with the possession of the plaintiff over the suit land, during the pendency of the suitE. That the cost of the suit be awarded to the plaintiff and against the defendantF. Any other relief or reliefs which deems fit and proper, be awarded to the plaintiff and against the defendantConsidering the averments in the plaint, it can be seen that, as such, the plaintiff has specifically admitted that the plaintiff and his brother executed the gift deed on 06.03.1981. It is admitted that the gift deed is a registered gift deed. It also emerges from the plaint that till 2003, neither the plaintiff nor his brother (during his lifetime) challenged the gift deed dated 06.03.1981 nor, at any point of time, claimed that the gift deed dated 06.03.1981 was a showy deed of gift. In fact, it is the defendant¬ appellant herein who instituted the suit in the year 2001 against his brothers to which even the plaintiff was a party as defendant No. 10 and that was a partition suit filed by the appellant herein¬ original defendant. It appears that the summon and the copy of the plaint – T.S. (Partition) Suit No. 203 of 2001 – was served upon the plaintiff in the year 2001 itself. Still, the plaintiff averred in the plaint that it came to the knowledge of the plaintiff with respect to the gift deed on 10.04.2003. Thus, it is born out from the averments in the plaint that, till 2003, the plaintiff never disputed the gift deed and/or never claimed that the gift deed dated 06.03.1981 was a showy deed of gift. With the aforesaid facts and circumstances, the application submitted by the appellant¬original defendant to reject the plaint in exercise of powers under Order 7 Rule 11 of the CPC is required to be considered6.8 In the case of Ram Singh (supra), this Court has observed and held that when the suit is barred by any law, the plaintiff cannot be allowed to circumvent that provision by means of clever drafting so as to avoid mention of those circumstances, by which the suit is barred by law of limitation7. Applying the law laid down by this Court in the aforesaid decisions on exercise of powers under Order 7 Rule 11 of the CPC to the facts of the case in hand and the averments in the plaint, we are of the opinion that both the Courts below have materially erred in not rejecting the plaint in exercise of powers under Order 7 Rule 11 of the CPC. It is required to be noted that it is not in dispute that the gift deed was executed by the original plaintiff himself along with his brother. The deed of gift was a registered gift deed. The execution of the gift deed is not disputed by the plaintiff. It is the case of the plaintiff that the gift deed was a showy deed of gift and therefore the same is not binding on him. However, it is required to be noted that for approximately 22 years, neither the plaintiff nor his brother (who died on 15.12.2002) claimed at any point of time that the gift deed was showy deed of gift. One of the executants of the gift deed – brother of the plaintiff during his lifetime never claimed that the gift deed was a showy deed of gift. It was the appellant herein¬ original defendant who filed the suit in the year 2001 for partition and the said suit was filed against his brothers to which the plaintiff was joined as defendant No. 10. It appears that the summon of the suit filed by the defendant being T.S. (Partition) Suit No. 203 of 2001 was served upon the defendant No.10¬ plaintiff herein in the year 2001 itself. Despite the same, he instituted the present suit in the year 2003. Even from the averments in the plaint, it appears that during these 22 years i.e. the period from 1981 till 2001/2003, the suit property was mortgaged by the appellant herein¬original defendant and the mortgage deed was executed by the defendant. Therefore, considering the averments in the plaint and the bundle of facts stated in the plaint, we are of the opinion that by clever drafting the plaintiff has tried to bring the suit within the period of limitation which, otherwise, is barred by law of limitation. Therefore, considering the decisions of this Court in the case of T. Arivandandam (supra) and others, as stated above, and as the suit is clearly barred by law of limitation, the plaint is required to be rejected in exercise of powers under Order 7 Rule 11 of the CPC7.1 At this stage, it is required to be noted that, as such, the plaintiff has never prayed for any declaration to set aside the gift deed. We are of the opinion that such a prayer is not asked cleverly. If such a prayer would have been asked, in that case, the suit can be said to be clearly barred by limitation considering Article 59 of the Limitation Act and, therefore, only a declaration is sought to get out of the provisions of the Limitation Act, more particularly, Article 59 of the Limitation Act. The aforesaid aspect has also not been considered by the High Court as well as the learned trial Court8. Now, so far as the application on behalf of the original plaintiff and even the observations made by the learned trial Court as well as the High Court that the question with respect to the limitation is a mixed question of law and facts, which can be decided only after the parties lead the evidence is concerned, as observed and held by this Court in the cases of Sham Lal alias Kuldip (supra); N.V. Srinivas Murthy (supra) as well as in the case of Ram Prakash Gupta (supra), considering the averments in the plaint if it is found that the suit is clearly barred by law of limitation, the same can be rejected in exercise of powers under Order 7 Rule 11(d) of the CPC.