A suit challenging property ownership based on historical wills is barred by limitation if not filed within the statutory period, especially when the plaintiff is aware of prior legal challenges.

JUDGMENT :

(PER : HONOURABLE MS. JUSTICE SANGEETA K. VISHEN)

Captioned appeal is directed against the judgment dated 10.04.2023 (hereinafter referred to as “the impugned judgment”) passed by the learned Additional Senior Civil Judge & Additional Chief Judicial Magistrate, Vadodara below Exh.11 in Special Civil Suit no.184 of 2022 (hereinafter referred to as “the suit”). For the sake of convenience, the parties are referred to as per their status in the suit.

2. The plaintiff – appellant had filed the suit, inter alia, praying for declaration, declaring the plaintiff as the owner and in possession and the defendants having no right, title or interest over the land bearing survey no.385 admeasuring 9510 sq. mtrs. (hereinafter referred to as “the land in question”). Further challenge is to the registered sale deed dated 20.06.2006 executed by the defendant nos.1 and 2 in favour of the defendant nos.6 and 7. Challenge is also to the registered sale deed dated 06.05.2015 executed by the ancestors of defendant nos.3 to 5 in favour of defendant nos.6 and 7. The plaintiff has also challenged the registered sale deed dated 15.04.2021 executed by the defendant nos.3 to 5 and defendant nos.6 and 7 in favour of the defendant no.8 with a consequential prayer, seeking direction that the defendants may not create any impediment to the plaintiff for peaceful enjoyment of the land in question.

2.1 The defendant nos.3 to 7 preferred an application under the provisions of Order VII Rule 11 of the Code of Civil Procedure, 1908 (hereinafter referred to as “the Code”) raising the ground of absence of cause of action to the plaintiff. Narrating the past events and the transactions and citing the provisions of Articles 56, 58 and 59 of the Limitation Act, 1963 (hereinafter referred to as “the Act of 1963”), it is urged that the cause of action, arose to the plaintiff in the year 1990 and having not taken any action, the suit filed in the year 2022, is barred by limitation. Accepting the application vide impugned judgment, the plaint is rejected. Being aggrieved, that the captioned appeal.

3. Mr Anshin H. Desai, learned Senior Advocate assisted by Mr Parv Mehta, learned advocate for Mr Satyam Y. Chhaya, learned advocate for the appellant – plaintiff submitted that while considering the application Order VII Rule 11 of the Code, only the plaint and the documents together with the plaint can be seen and considered; however, in the case on hand, the observations made in the impugned judgment, clearly suggest that the learned Judge has considered the documents produced by the defendants and travelled beyond the plaint and the documents, which exercise is impermissible in law.

3.1 It is further submitted that on 11.04.1979, a purported Will was executed in favour of Shri Lalitchandra Motilal Patel, Shri Jivanlal Motilal Patel and Shri Ramanlal Shankarlal Patel whereby, the land admeasuring 4755 sq. mtrs. located on the northern side of land in question was granted in favour of Lalitchandra Motilal Patel; while another 4755 sq. mtrs. on the southern side was given to Jivanlal Motilal Patel and Ramanlal Shankarlal Patel. It is submitted that apropos the Will, entry no.3497 dated 08.11.1987, was posted in the revenue record and was certified on 10.12.1987. Entry no.3497, was subject matter of challenge before the Deputy Collector who, cancelled it, and the order was unsuccessfully challenged before the Collector and thereafter, before the learned Special Secretary, Revenue Department.

3.2 It is further submitted that the Regular Civil Suit no.97 of 1994 was preferred against the order of the revenue authorities which was allowed by judgment dated 29.03.2006 and orders of the revenue authorities, were quashed and set aside. Regular Civil Appeal no.79 of 2006 was preferred against the judgment and it was decided only on 11.07.2019. The proceedings in connection with entry no.3497, got crystalized, which gave cause to the plaintiff to file the suit. It is submitted tha