Chotanben vs Kiritbhai Jalkrushnabhai Thakkar

2. The appellants filed a suit for declaration and permanent injunction on 18th October, 2013, against the respondents before the Principal Senior Civil Court, Anand, being Regular 2 Civil Suit No.166 of 2015 (Old No. Special Civil Suit No.193 of 2013). The frame of the subject suit is on the assertion that the appellants and original defendant Nos.1 & 2 were in joint ownership and possession of an ancestral property inherited by them from their predecessor (father), deceased Bawamiya Kamaluddin Saiyed, bearing Survey No.113/1+2, area H.1-37- 59 Ara, Akar Rs.15-81 paise. That land is old tenure agricultural land situated at Mouje Village, Hadgud Taluka and District Anand. The said ancestral, joint, undivided land was jointly possessed and used and enjoyed by the appellants (plaintiffs) and original defendant Nos.1 & 2 (predecessors of respondent Nos.2 to 15), after the demise of their father Bawamiya Kamaluddin Saiyed, being in his straight line of heirs. The names of Jahangirmiya Bawamiya Kamaluddin Saiyed and Hussainmiya Bawamiya Kamaluddin Saiyed (original defendant Nos.1 & 2 respectively) came to be recorded in the record of rights along with the names of the appellants and since that time, all of them were jointly in possession and usage of the undivided land. The appellants assert that they have half (1/2) share, rights, powers, possession and usage 3 rights in the property. It is their case that without their knowledge the original defendant Nos.1 & 2 transferred the said land after forging their (appellants) signatures. The appellants were not aware about the said transaction effected vide registered sale deed No.4425 dated 18th October, 1996, which they came to know from their community members, immediately whereafter they made enquiry in the office of Sub Registrar at Anand. It was revealed to them that the land has already been transferred by a registered sale deed dated 18th October, 1996 in favour of defendant Nos.4, 5 and 6 (Anilbhai Jaikrishnabhai Jerajani, Kiritbhai Jaikrishnabhai Thakkar and Kekanbhai Jaikrishnabhai Thakkar, respectively). They promptly applied for a certified copy of the registered sale deed. They were also informed that Jaikrishnabhai Prabhudas Thakkar had expired and, therefore, the defendant Nos.3 to 6 received the land as heirs. It is then asserted that from the registered sale deed, they came to know that their thumb impressions were obtained as witnesses in the presence of Bhikhansha Pirasha Divan. They asserted that they had never signed or gave their thumb impressions upon any such deed, 4 in any manner, in front of any witness. It is then stated that some person has been fraudulently involved for putting thumb impressions on the sale deed. They have asserted that the thumb impressions on the sale deed did not belong to them and that they were ready and willing to prove that fact by providing their genuine thumb impressions in front of officers. It may be relevant to reproduce paragraph 4 of the plaint which reads thus:

5. After filing of the suit, an application was filed on 19th November, 2014 under Orders XIII and XVI of the Code of Civil Procedure, 1908 (for short “CPC”) read with Sections 67 and 71 of the Evidence Act for directions to defendant Nos.3 to 6 to produce before the Court, the original deed executed by the original defendant Nos.1 & 2 in respect of the suit land and to obtain the admitted thumb impressions of the appellants and send it for scientific examination and comparison of the thumb impressions by a Handwriting Expert to unravel the truth. The original defendant Nos.4 to 6 filed reply to the said application on 3rd February, 2015, to oppose the same. Thereafter, the defendant No.5 (respondent No.1) on 17th April, 2015 filed an application under Order VII Rule 11(d) for rejection of the plaint on the ground that the suit was barred by limitation having been filed after 17 years. The appellants filed reply to the said application. Both the applications under Order XIII Rule 16 and under Order VII Rule 11(d), were 8 disposed of by the 4th Additional District Judge, Anand on 20th January, 2016 by separate orders. As regards the application filed by the plaintiffs (appellants), the Court allowed the same by passing the following order:

agricultural use. According to the contesting respondents, this appeal ought to be dismissed.

16. In the present case, we find that the appellants (plaintiffs) have asserted that the suit was filed immediately after getting knowledge about the fraudulent sale deed executed by original defendant Nos.1 & 2 by keeping them in the dark about such execution and within two days from the refusal by the original defendant Nos.1 & 2 to refrain from obstructing the peaceful enjoyment of use and possession of the ancestral property of the appellants. We affirm the view taken by the Trial Court that the issue regarding the suit being barred by limitation in the facts of the present case, is a triable issue and for which reason the plaint cannot be rejected at the threshold in exercise of the power under Order VII Rule 11(d).

17. In the above conspectus, we have no hesitation in reversing the view taken by the High Court and restoring the order of the Trial Court rejecting the application (Exh.21) filed by respondent No.1 (defendant No.5) under Order VII Rule 11(d). Consequently, the plaint will get restored to its original number on the file of the IVth Additional Civil Judge, Anand, 19 for being proceeded further in accordance with law. We may additionally clarify that the Trial Court shall give effect to the order passed below Exh.17 dated 20th January, 2016, reproduced in paragraph 5 above, and take it to its logical end, if the same has remained unchallenged at the instance of any one of the defendants. Subject to that, the said order must be taken to its logical end in accordance with law.

18. Accordingly, this appeal succeeds and is allowed in the above terms, with no order as to costs.

.………………………….CJI.

April 10, 2018.