The court upheld that the limitation period for challenging a sale deed starts upon knowledge of the transaction, confirming the lower courts' rejection of the plaint on limitation grounds.

ORAL ORDER

ORDER IN APPEAL

Present appellants, who are the original plaintiffs before the Civil Court in Regular Civil Suit No. 277 of 2011 and appellants before the first appellate Court in Regular Civil Appeal No. 37 of 2016, have challenged the order passed by the learned Additional Civil Judge, Kalol allowing present application under Order 7 Rule 11(d) of the Code of Civil Procedure (In short “CPC”) and rejecting the appeal, being Regular Civil Appeal No. 37 of 2016 by the learned 2nd Additional District Judge, Kalol on 20.02.2019. Being dissatisfied with the judgments and decree, appellants have approached this Court by filing present appeal under Section 100 CPC.

Following substantial questions of law are framed by the appellants.

(I) Whether the Courts below ere justified in allowing the application under Order VII Rule XI at pre trial stage?

(II) Whether the courts below have rightly appreciated the evidence on record and pleadings of the parties?

(III) Whether the Courts below were justified in rejecting the suit on the ground of limitation though it is mix question of law and facts?

(IV) Whether the learned Courts below ere justified in presuming about the issue with regard to knowledge of illegal occupation and possession without holding trial?

(V) Whether the Courts below were right in ignorning the principle of ‘Nemo Dat Quad Non Habet’?

(VI) Whether the lower appellate Court was right in making out the case within the purview of applicability of Order VII Rule XI of the Code of Civil Procedure?

Brief facts of the present case may be referred as under: As per the averments made by the plaintiffs, Shri Umedbhai Bhavanbhai Gandhrap was the original owner and predecessor of the plaintiff. That, land revenue survey no. 252 paiki 252/95 admeasuring 2-03-35 hectare aare sqr. meter situated at Kalol, Taluka: Kalol, District: Gandhinagar was owned by the ancestor of the plaintiffs namely Shri Umedbhai Bhavanbhai Gandhrap. Up to 1953, in the pahani patrak of five years, name of the ancestor of the plaintiffs was shown as an owner of the suit property and name of the defendant deceased Moti Galsa in the column of occupier/farmer. That, vide mutation entry No. 762, name of Motibhai Galsha was entered as an owner of the disputed property in effect of sale deed dated 04.10.1951 between Kazi Muhammad Nathu and Has Gulab and Motibhai Galsha. As per averments made by the plaintiffs, seller of the suit property namely Kazi Muhammad Nathu and Has Gulab were neither holding any title of the suit property and were not relating to the ancestors of the plaintiffs. That, the plaintiffs came to know about transaction in respect of the sale deed in the year 2011, and therefore, they inquired and obtained necessary record of the suit property, and therefore, filed Regular Civil Suit No. 277 of 2011 before the learned Civil Judge, Kalol with a prayer to declare them as they are legal owners of the suit property and handed over peaceful as well as vacant possession shall be handed to the plaintiffs by the defendant. Permanent injunction was also sought by the plaintiffs restraining defendants or their agents, power of attorney by executing registered sale deed, mortgage, gift, will and transfer or assign right of the suit property or any further construction till final disposal of the suit.

The defendants, after receiving the summons issued by the Court, appeared before the trial Court and filed an application Ex. 21 in the suit under Order VII Rule 11(d) of the Code of Civil Procedure (In short “CPC”) requesting to reject the plaint as it is barred by limitation. Learned Civil Judge, after bi-parte hearing, allowed the application below Ex. 21 and rejected the suit preferred by the plaintiffs by its judgment and decree dated 26^th July 2016. The original plaintiffs, being dissatisfied with the impugned judgment and decree passed by the Civil Court rejecting suit, preferred Regular Civil Appeal No. 37 of 2016 before the Court of Additional District Jud