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TMI Blog2018 (4) TMI 1899X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 Ju ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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, 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 fro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tuated at Mouje village Hadgud, Taluka and district Anand, survey No. 113/1+2, area heacter 1-37-59 Ara, Akar ₹ 15-81 paisa old tenure agricultural land is ancestral property of the applicants and thereby the applicants have undivided 1/2 (half) part, share, interest and right in the property and a partition of the land be undertaken in a judicial manner and the actual possession, usage, etc. be provided to the applicants in the interest of justice. b) The honourable court be pleased to declare that the Mouje village Hadgud, Taluka and district Anand, survey No. 113/1+2, area Heacter 1-37-59 Ara, akar ₹ 15-81 Paise old tenure agricultural land is ancestral, joint, undivided, jointly possessed and used property of the applicants and the Respondents Nos. 1 and 2 and thereby the Respondents Nos. 1 and 2 solely do not have the rights and powers to sell or interference in the title of the property and further declare that the registered sale deed No. 4425 dated 18.10.1996 in the favour of the Respondents Nos. 4 and 6 is null and void, void ab-initio, cancelled, false and frivolous and thereby the honourable court be kind enough to declare in the interest of justice that t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 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: ORDER The application is hereby allowed. The Defendants are directed to produce registered sale deed No. 4425 dt. 18/10/1996 in the court and further the register civil court is directed to take specimen thumb impression of the Plaintiffs as per Rules and further such sale deed along with the specimen of thumb impressions of the Plaintiffs be sent to thumb impression of the witnesses in such sale deed are of the Plaintiffs or not. Further the thumb ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the matter before the High Court by way of a Civil Revision Application No. 76/2016 against the order passed by the Trial Court dismissing his application Under Order VII Rule 11(d) of Code of Civil Procedure for rejection of the plaint. The High Court allowed the application Under Order VII Rule 11(d) of Code of Civil Procedure filed by Respondent No. 1 (Defendant No. 5) and reversed the decision of the Trial Court on the finding that the suit was barred by limitation. For so holding, the High Court in the impugned judgment observed thus: 18. This Court notices that the Plaintiffs are the sisters and Defendants No. 1 and 2 in the suit of the year 2013 have chosen not to file written statement. Thereby the original Defendants No. 1 and 2 who are sellers have not made their stand clear. Strong possibility cannot be ruled out that the Plaintiffs after about 20 years of the registered sale deed has chosen to bring a collusive suit. It is true that only detail of the plaint shall be examined at the stage of considering application Under Order VII Rule 11 of Code of Civil Procedure. From a bare reading of the plaint, it is clearly indicative that the registered sale deed has been ef ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... present case. 9. The Respondents, on the other hand, would contend that there is no infirmity in the view expressed by the High Court and being a possible view coupled with the fact that the suit instituted by the Appellants appears to be a collusive suit, no interference in exercise of jurisdiction Under Article 136 of the Constitution, is warranted. According to the contesting Respondents, it is unlikely that the Appellants who are sisters of original Defendant Nos. 1 2, would not have any knowledge about the transaction effected vide registered sale deed and especially, when Defendant Nos. 3 to 6 were in possession of the land for such a long time, which fact is reinforced from the mutation entries recorded in 1997 and including the conversion of the land from agricultural to non-agricultural use. According to the contesting Respondents, this appeal ought to be dismissed. 10. We have heard Mr. Purvish Jitendra Malkan, learned Counsel for the Appellants and Mr. Gaurav Agrawal, learned Counsel for the contesting Respondents. 11. After having cogitated over the averments in the plaint and the reasons recorded by the Trial Court as well as the High Court, we have no mann ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y heed to their request, they had no other option but to approach the court of law and filed the subject suit within two days therefrom. According to the Appellants, the suit has been filed within time after acquiring the knowledge about the execution of the registered sale deed. In this context, the Trial Court opined that it was a triable issue and declined to accept the application filed by Respondent No. 1 (Defendant No. 5) for rejection of the plaint Under Order VII Rule 11(d). That view commends to us. 13. 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 paragraph 7). The approach of the Trial Court, on the other hand, was consistent with the settled legal position expounded in Saleem Bhai and Ors. v. State of Maharashtra and Ors. (2003) 1 SCC 557, Mayar (H.K.) Ltd. and Ors. v. Owners Parties, Vessel M.V. Fortune Express and Ors. (2006) 3 SCC 100 and also T. Arivandandam v. T.V. Satyapal and Anr. (197 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ot disclose any cause of action qua that Defendant. The High Court has also noted the decision relied upon by the contesting Respondents in the case of Mayur (H.K.) Ltd. and Ors. (supra), which has restated the settled legal position about the scope of power of the Court to reject the plaint Under Order VII Rule 11(d) of Code of Civil Procedure. 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 th ..... X X X X Extracts X X X X X X X X Extracts X X X X
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