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2012 Supreme(Guj) 606

IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
M.R. Shah, J.
Becharbhai Zaverbhai Patel & Another - Appellants
Vs.
Jashbhai Shivabhai Patel & Others - Respondents
Civil Revision Application No. 186 of 2011
Decided On : 10-04-2012

Advocates Appeared:
For the Appellants : Nilesh A. Pandya
For the Respondents: A.S. Asthavadi

Headnote:

Civil Procedure Code, 1908 - Section 115 - Order 7 - Rule 11(d) - Suit for declaration - Limitation - Seeking to quash and set aside impugned order passed by 10th Additional Senior Civil Judge passed in Regular Civil Suit by which learned trial Court has dismissed said application preferred by petitioners hereinoriginal defendants no. 3 and 4 which was submitted to reject plaint in exercise of powers under Order 7 Rule 11 (d) of code on the ground that suit is exfacie barred by law of limitation - Held, Considering the averments and pleadings in the plaint as they are suit is clearly barred by law of limitation - Under the circumstances impugned order passed by trial Court deserves to be quashed and set aside - Civil Revision application allowed.

JUDGMENT :

M.R. Shah, J.

Present Civil Revision Application under Sec. 115 of the CPC has been preferred by the petitioners herein-original defendant Nos. 3 and 4 to quash and set aside the impugned order passed by the learned 10th Additional Senior Civil Judge, Vadodara passed below Exh. 14 passed in Regular Civil Suit No. 694 of 2010, by which, the learned trial Court has dismissed the said application preferred by the petitioners herein-original defendant Nos. 3 and 4 which was submitted to reject the plaint in exercise of powers under Order 7, Rule 11(d) of the CPC on the ground that the suit is ex-facie barred by law of limitation. That the respondent Nos. 1.1 to 1.4 original plaintiffs have instituted Regular Civil Suit No. 694 of 2010 against the petitioners herein-original defendant Nos. 3 and 4 and others in the Court of learned Civil Judge (S.D.), Vadodara for declaration to declare that the sale-deed dated 25-8-1975 executed by the original defendant No. 1 in favour of the petitioners herein-original defendant Nos. 3 and 4 as illegal and void. It appears from the averment in the plaint that it is the case of the original plaintiffs that the suit land in question was in the name of father of the plaintiffs Shivabhai Kashibhai pursuant to mutation Entry No. 50 dated 9-12-1953. It is further averred in the plaint that thereafter father of the defendant Nos. 1 and 2 Chhottabhai Bhagwanbhai who was at the relevant time Sarpanch got his name mutated in the revenue record vide Mutation Entry No. 245. It is further averred in the plaint, that thereafter, on the death of said Chhotabhai Bhagwanbhai on 11-10-1979 the name of defendant No. 1-Vasantlal Chhotalal was mutated in the revenue record vide Mutation Entry No. 1024 dated 24-9-1971 as heir and legal representatives of Chhotabhai Bhagwanbhai which was illegal. It is averred in the plaint that such mutation entry was made without any notice served upon the plaintiff as required under Sec. 135D of the B.L.R.C. It is further averred in the plaint, that thereafter, original defendant No. 1-Vasant Chhotabhai executed registered sale-deed dated 25-8-1975 in favour of original defendant Nos. 3 and 4-petitioners herein and name of defendant Nos. 3 and 4 have been mutated in the revenue record. It is further averred in the plaint, that thereafter, land bearing Survey Nos. 374 and 569 gone into the share of defendant No. 3-Becharbhai Zaverbhai Patel and land bearing Survey Nos. 380 and 127/1 had gone in the share of original defendant No. 4. Ambalal Zaverbhai Patel and necessary mutation entries have been made in revenue record vide Mutation Entry No. 1283 dated 10-6-1981 and the land bearing Survey No. 380 in the name of Ambalal Patel. Therefore, it is the case of the plaintiffs that registered sale-deed dated 25-8-1975 in favour of defendant Nos. 3 and 4 is illegal from the very beginning and though the father of the plaintiffs was having the right pursuant to the order passed by the revenue authority, without consent of the father of the plaintiffs aforesaid sale-deed has been executed. It is submitted that therefore, the plaintiffs have instituted aforesaid suit as such to set aside the registered sale-deed dated 25-8-1975 which was executed by the original defendant No. 1 in favour of original defendant Nos. 3 and 4. In the plaint, the original plaintiffs have submitted the cause of action in Para 8 and it is mentioned that as soon as plaintiffs came to know about the transaction dated 25-8-1975, they obtained the certified copy of the sale-deed from the office of Sub-Registrar on 16-6-2010, and thereafter, when plaintiffs contacted the defendants and pointed out the defendants about the illegal transaction, the defendants become angry and threatened that they will sale suit property in favour of other persons, and therefore, it is alleged that cause of action has arisen to file the suit. By making above averments in the plaint original plaintiffs have instituted the suit for d











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