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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SANGEETA K. VISHEN, J.
Jaman Shamji Fadadu – Appellant
Versus
Sadik Mahmad Sidik and Others – Respondents
Civil Revision Application No. 345 of 2018
Decided On : 12-01-2023
The court allowed the revision application and set aside the impugned order. The court held that the suit was barred by limitation and did not disclose a cause of action. The court also held that the plaintiff had suppressed the fact that an earlier suit had been filed and dismissed, which was an abuse of process.
Fact of the Case:
The plaintiff filed a suit challenging the promulgation entry no. 447 dated 6.2.1953 in the revenue record, which was posted on the basis of a Will and a mortgage deed discovered by the plaintiff. The defendant filed an application under Order VII Rule 11 of the Code of Civil Procedure, 1908 (hereinafter referred to as “the Code”), seeking rejection of the plaint. The trial court rejected the application, and the defendant filed a revision application in the High Court.
Finding of the Court:
The High Court held that the suit was barred by limitation as it was filed more than 60 years after the promulgation entry was posted. The court also held that the plaintiff had not disclosed a cause of action in the plaint, as the allegations of fraud were vague and the plaintiff had not explained why he had not filed the suit earlier. Further, the court held that the plaintiff had suppressed the fact that an earlier suit had been filed and dismissed, which was an abuse of process.
Issues: Whether the suit was barred by limitation.
Ratio Decidendi: The court held that the suit was barred by limitation as it was filed more than 60 years after the promulgation entry was posted. The court also held that the plaintiff had not disclosed a cause of action in the plaint, as the allegations of fraud were vague and the plaintiff had not explained why he had not filed the suit earlier. Further, the court held that the plaintiff had suppressed the fact that an earlier suit had been filed and dismissed, which was an abuse of process.
Final Decision: The court allowed the revision application and set aside the impugned order. The court held that the suit was barred by limitation and did not disclose a cause of action. The court also held that the plaintiff had suppressed the fact that an earlier suit had been filed and dismissed, which was an abuse of process.
JUDGMENT :
SANGEETA K. VISHEN, J.
1. With the consent of the learned advocates appearing for the respective parties, the matter is taken up for final disposal.
2. Issue Rule, returnable forthwith. Mr. Jenil M. Shah, learned advocate waives service of notice of Rule on behalf of respondent no. 1. Though served, nobody has entered appearance for rest of the respondents.
3. The captioned Civil Revision Application has been filed challenging the order dated 25.4.2018 passed below Exh.11 in Regular Civil Suit no. 325 of 2013 with a further prayer to allow the application, Exh.11 praying for rejection of the plaint under Order VII Rule 11 of the Code of Civil Procedure, 1908 (hereinafter referred to as “the Code”).
4. Tersely stated are the facts, emerging from the record of the captioned application.
4.1. Issue, in the present proceeding, revolves around survey no. 1130. Promulgation entry no. 447 was posted on 6.2.1953 in the revenue record with respect to survey nos.1129/2, 1130 and 1144/1 wherein, owing to the death of the Musa Pira, names of two sons, namely, Isaa Musa and Siddi Musa were to be shown; however, both of them having passed away, names of Abdulla Siddi and Ishaa Siddi, i.e. the heirs of Siddi Musa were mutated.
4.2. Vide registered sale deed dated 15.11.1964, the land bearing survey no. 1130 came to be purchased and entry no. 2506 dated 29.3.1965 was posted in the revenue record. Subsequent thereto, Babulal Maganlal Kankhara executed a registered sale deed dated 22.1.1965 in favour of Mahant Ramswarupasji Gurushantidasji Maharaj and entry no. 2507 dated 29.3.1965, was posted in the revenue record who, in turn, executed a registered sale deed dated 18.1.1986 for the land bearing survey no. 1130 admeasuring acre - 1 - 30 gunthas in favour of Madhubha Devji. The transaction was posted in the revenue record vide entry no. 136 and was certified on 7.3.1986. Names of Manubha Devji and Narubha Devji were also shown in the revenue record along with the name of Madhubha Devji which, was vide entry no. 170 dated 10.9.1986, certified on 13.10.1986. Upon death of Manubha Devji, heirship entry was recorded and the names of all the heirs were posted in the revenue record vide entry no. 404, followed by certification on 23.2.1998. Madhubha Devji and Narubha Devji waived their right over the land in question which fact, was also posted in the revenue record vide entry no. 408 dated 20.3.1999; certified on 24.11.1999. The petitioner, purchased the land bearing survey no. 1130 paiki 3 vide registered sale deed dated 18.7.2009, from the heirs of Manubha Devji which transaction was also recorded vide entry no. 924 dated 4.9.2009 and was certified on 6.10.2009.
4.3. On 4.9.2013, according to the petitioner after 60 years of the promulgation entry no. 447 dated 6.2.1953 and after four years of the execution of the registered sale deed dated 18.7.2009 in favour of the petitioner that the respondent no. 1 i.e. the original plaintiff (hereinafter referred to as “the plaintiff”) instituted a Regular Civil Suit no. 325 of 2013 before the learned Principal Senior Civil Judge, Jamnagar, seeking declaration that the plaintiff has right over the land bearing survey no. 1130 being the heir of Musa Pira and to grant his share of land by partitioning the same. Further prayer is also prayed for quashing and setting aside the promulgation entry no. 447 with respect to survey no. 1130 and to quash and set aside all the subsequent entries. The plaintiff, had also sought declaration that all the transactions pursuant to and on the basis of promulgation entry no. 447, are not binding on the plaintiff.
4.4. Discernibly, prior to the filing of the Regular Civil Suit no. 325 of 2013, another suit being Regular Civil Suit no. 63 of 2013 was filed by the plaintiff with identical averments and similar reliefs against the owner of survey nos. 1130 paiki 1 and 1130 paiki 2. An application under Order VII Rule 11 of the Code, was filed which came to be allowed and Regular
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