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TMI Blog2021 (9) TMI 1513X X X X Extracts X X X X X X X X Extracts X X X X ..... rs in title to the estate of one Haji Ali Mohammed Hajee Kassam Agboatwala, filed a civil suit in S.C. Suit No. 2343 of 1987 on the file of the City Civil Court at Bombay. The reliefs prayed for in this suit are as follows: The Plaintiffs, therefore, pray that: (a) It be declared that the judgment and order dated 28th November 1963 passed by A.L.T. Borivali, Bombay Suburban District, in Tenancy Case No. 32-G/65-63 Dahisar, Part of Exhibit 'F' hereto, holding Defendant No. 1 to be 'deemed Purchaser' of the suit land bearing Survey No. 216, Hissa No. 4-A bearing C.T.S. No. 1879, of village Dahisar Taluka Borivali, Bombay suburban District is null and void, inoperative in law and not binding upon the Plaintiffs; (b) It be declared that Certificate issued by A.L.T. Borivali, Under Section 32-M of the Tenancy Act, part of Exhibit 'F' to this Plaint, declaring Defendant No. 1 as 'deemed purchaser' of the suit land bearing Survey No. 216, Hissa No. 4-A, bearing C.T.S. No. 1879 of village Dahisar Taluka Borivali, Bombay Suburban District is null and void inoperative in law and not binding upon the Plaintiffs; (c) It be further declared that Defendant ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 3415 of 1947 was filed on the original side of the High Court of Bombay. By a judgment dated 30.06.1950, the High Court appointed a Receiver and he took over possession and management of the properties. According to the Plaintiffs, certain sales through Agricultural Lands Tribunal and mutation in the revenue records were effected thereafter without the knowledge and behind the back of the heirs and legal representatives and that the Plaintiffs came to know about the same, when they made an inspection of the records available with the Court Receiver. Therefore, the suit was filed primarily for setting aside an order passed by the Agricultural Lands Tribunal (for short "ALT") in a tenancy case Under Section 32G of the Maharashtra Tenancy and Agricultural Lands Act, 1948 (for short "the Act") and for setting aside a sale certificate issued Under Section 32M of the Act. 6. Since the order of the ALT passed Under Section 32G of the Act was dated 28.11.1963 and the sale certificate issued Under Section 32M was dated 23.07.1954, but the suit being S.C. suit No. 2343 of 1987 was filed in March-1987, the second Defendant in the suit which is a Cooperative Society, took out a notice of mot ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s were never ordered to them nor served on them. Therefore, the answer to the issue regarding limitation, will depend upon the evidence with regard to the issuance and service of notice and the knowledge of the Plaintiffs. Hence, the Trial Court as well as the High Court were not right in rejecting the plaint on the ground of limitation, especially in the facts and circumstances of this case. 13. As observed by this Court in P.V. Guru Raj Reddy v. P. Neeradha Reddy and Ors. (2015) 8 SCC 331, the rejection of plaint Under Order VII Rule 11 is a drastic power conferred on the Court to terminate a civil action at the threshold. Therefore, the conditions precedent to the exercise of the power are stringent and it is especially so when rejection of plaint is sought on the ground of limitation. When a Plaintiff claims that he gained knowledge of the essential facts giving rise to the cause of action only at a particular point of time, the same has to be accepted at the stage of considering the application Under Order VII Rule 11. 14. Again as pointed out by a three member bench of this Court in Chhotanben v. Kiritbhai Jalkrushnabhai Thakkar (2018) 6 SCC 422, the plea regarding the date ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on 3 providing as to when "a person is said to have notice", are matters of fact to be established through evidence. The Respondents in this case cannot even fall back upon Explanation II which holds that a person acquiring an immovable property will be deemed to have notice of the title of a person in actual possession thereof. In this case, it was the Court Receiver who was in possession and management of the entire Estate at the time of the impugned proceedings and hence Explanation II cannot be used by the Defendants. 19. The decision in Rajasthan Housing Board (supra) also reiterates the two ingredients of Section 3 of the Transfer of Property Act, 1882, and hence the same cannot be raised in an application Under Order VII Rule 11. It should be pointed out at this stage that Section 32(G)(1) of the Act contemplates a public notice in the prescribed form to be published in each village. It is not the case of Respondents that the Plaintiffs had real or constructive notice of the proceedings by virtue of such a public notice. It is not even known whether a public notice was ever published. Therefore, the plea of constructive notice raised with a view to sustain the plea of limit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he Collector or the State Government passed under the Act shall be questioned in any Civil or Criminal Court, the bar contained therein stands diluted to some extent Under Section 85-A. 22. Section 85A inserted by Bombay Act 13 of 1956 prescribes a two stage procedure for the Civil Court to follow, whenever a suit is instituted, despite the bar contained in Section 85. In the first stage, the Civil Court should stay the suit and refer the issues to the competent authority under the Act for determination. In the second stage, the Civil Court should dispose of the suit in accordance with the procedure applicable thereto, after receipt of the decision of the competent authority, to whom the issues were referred for a decision under the Act. 23. If the bar Under Section 85(2) was absolute, the Civil Court would have no option except to dismiss the suit. If the bar of jurisdiction is absolute, the question of the Civil Court staying further proceedings in the suit, referring the issues for the adjudication of the competent authority under the Act and disposing of the suit after receipt of a decision from the competent authority, would not arise. 24. The City Civil Court as well as th ..... X X X X Extracts X X X X X X X X Extracts X X X X
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