2018 (4) TMI 1899 - SC - Indian Laws

Suit for declaration and permanent injunction - Fraudulent putting thumb impressions on the sale deed - time limitation - HELD THAT - There are no manner of doubt that the High Court committed manifest error in reversing the view taken by the Trial Court that the factum of suit being barred by limitation, was a triable issue in the fact situation of the present case. We say so because the Appellants (Plaintiffs) have asserted that until 2013 they had no knowledge whatsoever about the execution of the registered sale deed concerning their ancestral property. Further, they have denied the thumb impressions on the registered sale deed as belonging to them and have alleged forgery and impersonation. What is relevant for answering the matter in issue in the context of the application Under Order VII Rule 11(d), is to examine the averments in the plaint. The plaint is required to be read as a whole. The defence available to the Defendants or the plea taken by them in the written statement or any application filed by them, cannot be the basis to decide the application Under Order VII Rule 11(d). Only the averments in the plaint are germane. The High Court on the other hand, has considered the matter on the basis of conjectures and surmises and not even bothered to analyse the averments in the plaint, although it has passed a speaking order running into 19 paragraphs. It has attempted to answer the issue in one paragraph which has been reproduced hitherto - In the present case, it is found 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. There are 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) - the plaint will get restored to its original number on the file of the IVth Additional Civil Judge, Anand, for being proceeded further in accordance with law. Appeal allowed.

Summary

Issues Involved:
1. Joint ownership and possession of ancestral property.
2. Alleged fraudulent transfer of property.
3. Bar of limitation for filing the suit.
4. Rejection of plaint under Order VII Rule 11(d) of CPC.
5. Production of original sale deed and examination of thumb impressions.

Issue-wise Detailed Analysis:

1. Joint Ownership and Possession of Ancestral Property:
The appellants filed a suit asserting joint ownership and possession of an ancestral property inherited from their deceased father. They claimed a half share in the property and alleged that the original Defendant Nos. 1 & 2 had no right to sell the property without their consent.

2. Alleged Fraudulent Transfer of Property:
The appellants contended that the original Defendant Nos. 1 & 2 transferred the property without their knowledge by forging their signatures. They discovered the fraudulent transaction from community members and upon inquiry, obtained a certified copy of the registered sale deed dated 18th October 1996. They alleged that their thumb impressions on the sale deed were forged, and they were ready to prove this by providing genuine thumb impressions.

3. Bar of Limitation for Filing the Suit:
The trial court dismissed the application for rejection of the plaint under Order VII Rule 11(d) of CPC, stating that whether the suit was barred by limitation was a triable issue. The High Court, however, reversed this decision, holding that the suit was barred by limitation as it was filed after 17 years. The Supreme Court emphasized that the appellants claimed they had no knowledge of the sale deed until 2013 and filed the suit immediately after discovering the fraud, making the issue of limitation a triable one.

4. Rejection of Plaint under Order VII Rule 11(d) of CPC:
The trial court rejected the application for rejection of the plaint, stating that the factum of the suit being barred by limitation was a triable issue. The High Court, however, allowed the application and dismissed the suit as barred by limitation. The Supreme Court held that the High Court erred in its decision and that the trial court's view was consistent with the settled legal position that the issue of limitation was a triable issue.

5. Production of Original Sale Deed and Examination of Thumb Impressions:
The trial court allowed the application for production of the original sale deed and directed the defendants to produce it for examination of the thumb impressions by a handwriting expert. The Supreme Court affirmed this order, stating that the trial court should proceed with the examination of the thumb impressions to unravel the truth.

Conclusion:
The Supreme Court reversed the High Court's decision, restored the trial court's order rejecting the application for rejection of the plaint, and directed the trial court to proceed with the examination of the thumb impressions. The suit was restored to its original number for further proceedings in accordance with law.