No cause of action exists for partition without challenging the underlying gift deed; the plaint cannot be rejected on grounds of limitation based on the alleged fraud.

JUDGMENT :

SHAILESH P. BRAHME, J.

Heard finally with the consent of the parties.

2. Appeal was admitted vide order dated 17.02.2023 on following substantial question of law :

(i) Whether there was any cause of action to seek partition of the suit property when admittedly the registered gift deed executed in favour of defendant is not challenged ?

3. Appellant is the original defendant, who is aggrieved by judgment and decree dated 04.03.2021 passed by the lower appellate Court in Regular Civil Appeal No. 59/2020, reversing order of rejection of plaint passed by the Trial Court below Exh. 16 and remanding the matter before Trial Court for decision on merits.

4. Appellant and the respondent are real brothers. They jointly purchased a house property bearing CTS No. 5254 situated at Tilak Peth Aurangabad vide sale-deed dated 10.06.2008. The appellant wanted to take financial assistance on the basis of the suit property, which was standing in the joint name. He requested the respondent to transfer the suit property in his name nominally. Considering the relationship, a conveyance deed was executed on 02.12.2014 transferring the suit property to the appellant. It was a registered instrument. Thereafter a correction deed was executed on 05.08.2015. On or about 10.11.2017, a memorandum of understanding was executed between the parties, whereby the appellant assured to re-transfer the suit property to the respondent. The appellant had unholy intention to grab the suit property. It was discovered that no loan was taken, and fraudulently the registered instrument got executed from the respondent. Appellant is said to have avoided to re-transfer the property. The document executed on 02.12.2014 revealed to be a gift-deed. The title and ownership of the respondent was denied on 28.03.2019. Respondent was constrained to file Spl. Civil Suit No. 109/2019 for the relief of partition, possession and injunction.

5. It is the defence of the appellant that the gift deed was executed by the respondent in favour of the appellant on 0212.2014 consciously and it was registered also. Thereafter, registered correction deed was executed on 05.08.2015 to rectify the area shown in the earlier instrument. The appellant never wanted to raise loan on the basis of the suit property. The transfer of the property was with the understanding and knowledge of the respondent. The memorandum is denied by the appellant. It is further contended that suit is barred by limitation. There is no cause of action and such a suit without seeking declaration in respect of the gift deed is not maintainable.

6. Appellant filed application Exh. 16 under 7 Rule 11 (a) and (d) of CPC . Respondent opposed the application by filing his say. Trial Court allowed the application vide order 24.02.2020 and rejected the claim on the basis of Order 7 Rule 11 (a). However, Trial Court, did not find favour with the appellant for rejection of plaint under Order 7 Rule 11 (d) so far plea of limitation is concerned. Being aggrieved respondent preferred Regular Civil Appeal No. 59/2020, which is allowed partly and order of rejection of plaint was quashed and set aside. The matter is relegated to Trial Court for deciding it on merits, in accordance with law, vide judgment and decree dated 04.03.2021, which is impugned in the present appeal.

7. Learned counsel for appellant Mr. Bajaj submits that the lower Appellate Court has committed perversity in allowing the appeal, when respondent was aware of the gift deed executed on 02.12.