ORAL JUDGMENT

(PER : HONOURABLE MR. JUSTICE A.J.DESAI)

By way of present appeal under Section 96 read with Order-41 Rule-1 of the Civil Procedure Code, 1908 [hereinafter referred to as “CPC” for short], the appellants – original plaintiffs have challenged an order dated 4.10.2021 passed by learned 3rd Additional Senior Civil Judge, Surat below application Exh.15 in Special Civil Suit No.110 of 2019 submitted by the respondent Nos.6 to 9 under Order-7 Rule-1(d) as well as Order-7 Rule-1(a) of CPC whereby the said suit has been dismissed on the ground that the same is barred under the provisions of Limitation Act, 1963.

2. The short facts arise from the record are as under:

2.1 That the present appellants – original plaintiffs through their Power of Attorney – Nikhilkumar alias Nikhil Dhansukhbhai Patel had filed a suit being Special Civil Suit No.110 of 2019 in the Court of learned Principal Senior Civil Judge, Surat claiming their 40% right on piece of land located at Survey No.474/3, Block No.775, admeasuring 2124 sq. mts. as well as for cancellation of registered sale deed dated 25.3.2015 registered at serial No.397 with the office of Sub-Registrar, Surat executed in favour of the respondent Nos.6 to 9 - original defendant Nos.6 to 9 by the land owners as well as for permanent injunction restraining the defendant Nos.6 to 9 from further transaction.

2.2 It was pleaded in the plaint that the appellants are the grand children of Bai Halima D/o. Mohammad Fakira and W/o. Ebrahim Kasam Mansoor, who was the owner of the property in question. The appellant No.1 was born in India, however, alongwith his father Dawood Ebrahim Mansoor, he was shifted to London (U.K.) when he was aged about 14 years, whereas the appellant No.2 was born in London (U.K.).

2.3 It was further stated in the plaint that since both the appellants were residing at London (U.K.), after death of their grandmother Bai Halima, who expired on 15.8.1980, vide entry No.5059 dated 20.3.1990, names of other legal heirs were mutated in the revenue record, however, neither name of the appellants’ deceased father nor his legal heirs (appellants) names were mutated in the revenue record.

2.4 It was further specifically submitted that when the appellants came to India in the year 2016, they did not verify the revenue record, however, with the help of Power of Attorney, in the year 2018, it was found that their names were not mutated in the revenue record and the property was sold in the year 2015. Having come to know about such transaction, the aforesaid suit has been filed.

2.5 The respondent Nos.6 to 9 filed an application under Order-7 Rule11(d) of CPC at Exh.15 in the said suit proceedings raising contention that the said suit is time barred under the provisions of Limitation Act, and requested the learned trial court to reject the plaint. It was contended by the said respondents that they have purchased the said property by registered sale deed way back in the year 2015 and to challenge such transaction, as per Article 58 of the Limitation Act, limit of 3 years is prescribed, which expired in the year 2018, whereas the suit has been filed in the year 2019, i.e. after a period of more than 3 years.

2.6 Learned trial court has accepted the said application at Exh.15 and rejected the plaint holding that the suit is barred by limitation hence, this appeal.

3. Mr. Tarak Damani, learned advocate for the appellants, would submit that the learned trial court has committed error in accepting the application at Exh.15 filed by the respondent Nos.6 to 9. He would submit that the appellants are the legal heirs (being grand children of Bai Halima); are entitled for their share after demise of their father to the extent of 40% and such share can be claimed at any point of time. He would submit that as and when the appellants came to know about the said transaction and non-mutation of their names in the revenue record, the suit was filed and cause of action to file the suit in the year 2019 h