,,,
A.J.Desai, J",,,
1. These two appeals have been filed by the Appellants - original plaintiffs under Section 96 of the Code of Civil Procedure, 1908. Out of these two",,,
above referred First Appeals, First Appeal No.335 of 2022 has arisen from the judgment and decree dated 10.1.2022 passed by learned City Civil",,,
Judge, Court No.4, Ahmedabad below application Exh.103 in Civil Suit No.1786 of 2005. The said application Exh.103 was filed by the original",,,
defendant No.1 - respondent No.1 herein under Order VII, Rule 11(d) of the Code of Civil Procedure, 1908 (hereinafter referred to as 'CPC')",,,
requesting the Court to reject the plaint on the ground that the suit is barred by the law of limitation and by the impugned order, the said application",,,
came to be allowed and the plaint was ordered to be rejected.,,,
Whereas, First Appeal No.356 of 2022 has arisen from the judgment and decree dated 10.1.2022 passed by the learned City Civil Judge, Court No.4,",,,
Ahmedabad below application Exh.107 in Civil Suit No.1785 of 2005. The said application Exh.107 was filed by the original defendant No.1 -,,,
respondent No.1 herein under Order VII, Rule 11 (d) of the Code of Civil Procedure, 1908 (hereinafter referred to as 'CPC') requesting the Court to",,,
reject the plaint on the ground that the suit is barred by the law of limitation and by the impugned judgment and decree, the said application came to be",,,
allowed and the plaint was ordered to be rejected.,,,
2. First Appeal No.356 of 2022 could have been decided by learned Single Judge considering the pecuniary jurisdiction whereas First Appeal No.335,,,
of 2002 is required to be decided by the Division Bench. However, since the suit property is the same and the contentions raised by both the parties in",,,
the suits as well as applications Exh.103 and 107 are also same and since both the said applications have been decided by the learned Judge, City Civil",,,
Court No.4, Ahmedabad on the same day and as per the request made by learned advocates appearing for the respective parties in the present",,,
appeals to hear both the appeals together, an order was passed by this Court to list both the First Appeals together. Accordingly, both the appeals",,,
were heard together and are being disposed of by this common judgment and order.,,,
3. The case put forward by the appellant of both the appeals i.e. Legal Heirs of deceased Dr. Kiranbhai Motibhai Patel and Sarojben Kiranbhai Patel,,,
widow of deceased Dr. Kiranbhai Motibhai Patel in both the suits are as under :-,,,
3.1 That an immovable property comprising of land bearing Revenue Survey No.58/7/2 bearing Final Plot No.431 paiki of Town Planning Scheme,,,
No.21 admeasuring 5261 Sq. Mts. (6292 Sq. Yds.) situated at Chhadavad, Tal. City, Dist. Ahmedabad having a constructed house thereupon belonged",,,
to the original plaintiff Dr. Kiran Motibhai Patel (now deceased whose legal heirs have already been brought on record before the learned Trial Court,,,
itself), and his two brothers, namely, Dr. Sushrut Motibhai Patel and Hematbhai Motibhai Patel and is a joint property. By a written agreement dated",,,
14.8.1970, it was decided between the three brothers that two brothers i.e. Dr. Sushrut Motibhai Patel and Dr. Kiran Motibhai Patel had equal share",,,
in the suit property, whereas it is the case of the appellant - original plaintiff i.e. Sarojben, wife of Kiranbhai Patel before the learned Trial Court that",,,
she had become absolute owner of the part of suit property (800 Sq. Yds.) because her father-in-law had bequeathed this part of the property to her.,,,
3.2 It is further the case of the appellants - original plaintiffs that some disputes were going on with regard to the property in question between the,,,
brothers i.e. Dr. Kiran Motibhai Patel and Dr. Sushrut Motibhai Patel. However, the same was settled and both of them have decided to sell the entire",,,
property in question. It is further the case of the appellant that since he was residing in USA with his family, he executed a Power of Attorney on",,,
23.12.1994 in favour of respondent No.5 - Rameshbhai Ravjibhai Patel in respect of the suit property who happens to be his brother-in-law (plaintiff's,,,
sister's husband). It is also the case of the appellant that the Power of Attorney was of limited nature and that there was no authority given to,,,
respondent No.5 to enter into an agreement with the respondent No.4. Similar is the case of the appellant - Sarojben Kiranbhai Patel in the other suit.,,,
3.3 It is further the case of the appellant - original plaintiff that his brother i.e. Dr. Sushrut Patel agree to sell his half share from the suit property for a,,,
consideration of Rs.3.70 Crores (Rupees Three Crores Seventy Lacs Only) in favour of defendant No.4 and Banakhat dated 30.5.1996 to the said,,,
effect was executed between Dr. Sushrut Patel and defendant No.4 which was registered with Sub-Registrar office at Serial No.1965. It is further,,,
the case of the appellants that all the defendants (defendant No.5 as Power of Attorney of the plaintiffs) in connivance with each other entered into,,,
registered agreement on 18.5.1996 in favour of defendant Nos.2 and 3. By the said agreement dated 18.5.1996, an understanding was arrived at to",,,
treat respondent Nos.2 and 3 as Agents of plaintiff to negotiate and procure purchasers in respect of the suit property on ""AS IS WHERE IS BASIS""",,,
including a consideration of Rs.1.70 Crores (which also included Rs.20 Lacs received by plaintiff - Dr. Kiranbhai Patel under the prior agreement,,,
dated 24.7.1995) and in the said document, the defendant No.5 has signed on behalf of the appellant as Power of Attorney. Whereas in Civil Suit",,,
No.1785 of 2005, as per the case of the plaintiff - Sarojben Patel, total consideration was Rs.30 Lacs and only an amount of Rs.2 Lacs was deposited",,,
in the account of plaintiff.,,,
3.4 It is further the case of the plaintiff that having found some doubts about the conduct of the defendants including their Power of Attorney, the",,,
plaintiff issued notice dated 22.2.1999 to defendant No.5 asking him not to act as per the Power of Attorney dated 23.12.1994. A public notice in two,,,
daily newspapers i.e. Gujarat Samachar and Times of India was issued on 5.3.1999 to defendant Nos.2 and 3 cancelling the registered agreement,,,
dated 30.5.1996. In response to the said public notice, an evasive reply was given by the defendant No.1 Society. It is further the case of the plaintiffs",,,
that on 6.7.2000, registered sale deed was executed by defendant No.5 as Power of Attorney of the plaintiffs in favour of defendant No.1 - Society in",,,
respect of the suit property. It is further the case of the plaintiff that when the plaintiff came to know that their Power of Attorney had executed the,,,
Sale Deed dated 6.7.2000 in favour of defendant No.1 Society in respect of the suit property, the plaintiffs filed the aforementioned suits on",,,
10.10.2005 seeking various reliefs. It was prayed that the Sale Deed which was executed in 2000 is void-ab-initio, illegal, unauthorized and the suit",,,
property has been transferred without consideration and hence, registered Sale Deed dated 6.7.2000 executed in favour of defendant No.1 Society be",,,
cancelled since the Power of Attorney was cancelled on 22.2.1999. It is also further prayed in the suit that the defendants have taken possession of,,,
the property without any right, title or interest and hence, the defendants may be declared as tress-passers and appropriate relief may be passed. It is",,,
also further prayed that since the house constructed on the suit property was demolished, the plaintiff would be entitled to the damages of Rs.20 Lacs",,,
qua his portion of the suit property.,,,
3.5 Along with the suit, an application under Order XXXIX of CPC seeking temporary injunction was also filed. The learned Judge, City Civil Court",,,
No.2, Ahmedabad vide order dated 29.6.2011 passed below notice of motion applications Exh.6/7 in Civil Suit No.1785 of 2005 and directed the",,,
parties to maintain status-quo with regard to the suit property till the final disposal of the suit.,,,
3.6 Written statements have been filed by the defendants denying the averments made in the plaint. The suits remained pending for hearing upto 2021.,,,
3.7 The defendant No.1 - Society on 16.10.2021 filed applications Exh.103 and 107 respectively in both the suits i.e. Civil Suit No.1786 and 1785 of,,,
2005 under Order VII, Rule 11 (d) of the CPC for rejection of the plaint, essentially on the ground that the suit is barred by limitation. The appellant",,,
filed reply to the said application on 12.11.2021 at Exh.104 and 108 respectively and opposed the reliefs sought for by the defendant No.1 in the said,,,
applications.,,,
3.8 The learned Judge, City Civil Court No.4, Ahmedabad, after hearing the parties and considering the case, by the impugned separate orders dated",,,
10.1.2022 accepted applications Exh.103 and 107 and rejected both the plaints on the ground that the suits are barred by the law of limitation.,,,
3.9 Hence these appeals.,,,
4. Mr. Shalin Mehta, learned Senior Counsel appearing with Mr. Rohan A. Shah appearing for the appellant - plaintiff has assailed the orders",,,
impugned in these appeals. He would submit that the learned Trial Court has committed an error in accepting the applications of defendant No.1 only,,,
on the ground that the plaintiffs had filed the suit in the year 2005 wherein the challenge is to cancel the Sale Deed dated 6.7.2000, but has miserably",,,
failed to consider other prayers sought in the plaint. He would further submit that it is an undisputed fact that the Power of Attorney executed by the,,,
plaintiffs in favour of defendant No.5 who happens to be their close relative was cancelled on 22.2.1999 by issuing a notice to him as well as in local,,,
newspapers whereas the Sale Deeds have been executed on 6.7.2000. Therefore, the contentions raised by the plaintiffs about the illegal transaction",,,
which is ab-initio-void has not been dealt with. He would further submit that the plaintiffs have also raised contention that the entire property was not,,,
divided / partitioned by metes and bounds at the time of execution of the Sale Deeds and, therefore, the share of Dr. Sushrut Motibhai Patel, brother",,,
of the plaintiff sold by him showing the brother's share was not referred therein, the conveyance qua the property belonging to the plaintiffs are illegal,",,,
has not been properly dealt with by the learned Trial Court. He would further submit that by virtue of the Sale Deed which is illegal, the defendants",,,
were put in possession of the suit property and, therefore, they are tress-passers and for removal of such tress-passers, necessary prayers have also",,,
been made. He would further submit that the learned Trial Court has erred in accepting the case of the defendants that the fact that an amount of,,,
Rs.20 Lacs and Rs.2 Lacs respectively were deposited in the account of the plaintiffs and did not take care to refund the same, at the time of",,,
cancelling the Power of Attorney, there is no need for refunding the amount to the plaintiffs. He would further submit that though Conveyance has",,,
been executed, there is no material produced on record to show that remaining amount / sale consideration has been credited in the account of any of",,,
the plaintiffs. These aspects ought to have been considered by the learned Trial Court since the same can be considered as mixed question of facts,,,
and law. He, therefore, would submit that if there is mixed question of facts and law, the same can be decided only after full-fledged trial and the",,,
learned Trial Court ought not to have accepted the applications and reject the plaint on the ground of limitation.,,,
4.1 Mr. Mehta would further submit that the learned Trial Court has committed an error in accepting the applications as if the suit was filed only for,,,
cancellation or setting aside of the Conveyances dated 6.7.2000 and would fall under Article 59 of the Schedule to Limitation Act which prescribe the,,,
period of limitation. He would further submit that in fact, in case the plaintiff has sought possession of the property along with the prayers of setting",,,
aside the Conveyance which is illegal and void ab-initio and, therefore, the period prescribed under Article 65 of Schedule to Limitation Act is of 12",,,
years. Therefore, the suit has been filed within a period of limitation. In support of this submission, Mr. Mehta has relied upon a decision of the",,,
Hon'ble Supreme Court in the case of Sopanrao and another v. Syed Mehmood and others, (2019) 7 SCC 76. By taking us through the said decision,",,,
he would submit that the ratio laid down by the Apex Court in paragraph 9 of the said decision would be applicable in the facts of the present case. He,,,
would further submit that one of the prayer for possession of the property does exist, for which the suit has been filed within a period of 12 years and,",,,
therefore, the plaint cannot be rejected that one of the prayer is barred by limitation.",,,
4.2 By relying upon the decision of the Hon'ble Apex Court in the case of C. Natrajan v. Ashim Bai and another (2007) 14 SCC 183, Mr. Mehta",,,
would submit that the question whether the suit is barred by limitation or not, would depend upon the facts and circumstances of each case.",,,
4.3 By relying upon the decision of the Hon'ble Apex Court in the case of Srihari Hanumandas Totala v. Hemant Vithal Kamat and others, (2021) 9",,,
SCC 99, Mr. Mehta would submit that the Hon'ble Apex Court has laid down certain guidelines for deciding an application filed under Order VII, Rule",,,
11 (d) of the CPC. It has been held in the said decision that only the averments in the plaint are to be referred, the defense of the defendants in the",,,
suit must not be considered while deciding such application and other points with regard to res judicata which is not the issue in the present case.,,,
Similar is the ratio laid down by the Hon'ble Apex Court in the case of Urvashiben and another v. Krishnakant Manuprasad Trivedi, (2019) 3 SCC",,,
372.,,,
4.4 Mr. Mehta has also relied upon an unreported decision of the Division Bench of this Court in the case of Kiritbhai Dahyabhai Patel v. Gujarat Eco,,,
Infrastructure Private Limited, decision dated 18.10.2019 passed in First Appeal No.479 of 2019. He would submit that since total consideration of the",,,
sale transaction is not paid to the plaintiffs by the defendants, it cannot be treated as 'sale' as defined under Section 54 of the Transfer of Property Act",,,
and hence, the learned Trial Court ought not to have rejected the plaint without examining the evidence which might have been led by the parties to",,,
the proceedings.,,,
4.5 A heavy reliance is placed by learned Senior counsel Mr. Mehta on the decision of the Apex Court in the case of Sopan Sukhdeo Sable and others,,,
v. Assistant Charity Commissioner and others, (2004) 3 SCC 137. By taking us through the observations made by Hon'ble the Apex Court in",,,
paragraph 15 of the said judgment, he would submit that the language of various paragraphs in the plaint cannot be compartmentalized, segregated etc.",,,
and, therefore, in the present case, reading the plaint as a whole, it cannot be said that the suit could have been rejected only on the ground of",,,
limitation and that too without proper trial. He, therefore, would submit that the present appeals may be allowed and the impugned judgment and",,,
decrees be quashed and set aside.,,,
5. On the other hand, Mr. A. S. Vakil, learned advocate appearing for the defendant No.1 - Society has vehemently opposed these appeals and",,,
supported the reasons assigned by the learned Trial Court accepting the applications filed by defendant No.1 under Order VII, Rule 11 (d) of CPC.",,,
By taking us through applications Exh.103 and 107 respectively in both the suits, he would submit that the plaintiffs were fully aware about execution",,,
of the Sale Deeds dated 6.7.2000 which was registered at Serial No.2781 and relevant entries were mutated in the revenue record. He would further,,,
submit that the plaintiffs cannot say that they were not aware about execution of the registered Sale Deed since they themselves have challenged,,,
those mtation entry in the month of September, 2000 itself i.e. within a period of two months only.",,,
5.1 Mr. Vakil would further submit that the plaintiffs have deliberately not mentioned about the action taken by them under the provisions of the land,,,
laws in the plaint and/or in the reply filed to the applications Exh.103 and 107 respectively which have been filed under Order VII, Rule 11 (d) CPC.",,,
He would further submit that clever drafting of plaint making prayers or describing the cause of action would not bring the case within the prescribed,,,
period of limitation under the provisions of the Limitation Act, 1963. He would further submit that apart from the observations made by Hon'ble Apex",,,
Court in the case of Sopan Sukhdeo Sable and others v. Assistant Charity Commissioner and others which has been relied upon by the appellants,,,
themselves, it has been held therein that the entire and meaningful reading of averments of the plaint is necessary. He would further submit that",,,
Hon'ble the Apex Court in latest decision in the case of Raghwendra Sharan Singh v. Ram Prasanna Singh (Dead) by Legal representatives r,eported",,,
in (2020) 16 SCC 601 has held that on entire and meaningful reading of the averments in the plaint, if it is found that there is no cause of action and",,,
right to sue is found to be barred by law of limitation, the same can be held vexatious and meritless and on that ground, the plaint can be rejected.",,,
5.2 Mr. Vakil has also relied upon the decision of the Hon'ble Apex Court in the case of Hardesh Ores (P) Limited v. Hede and Company, (2007) 5",,,
SCC 614, he would submit that the real foundation of filing a suit is required to be examined and, therefore, if the facts of the case are perused, the",,,
learned Trial Court has committed no error in rejecting the plaint. It has also been held in the aforesaid decision that the disclosure of cause of action,,,
might be essentially a question of fact which must be found out from a purposeful and meaningful reading of the plaint itself and whether it would be,,,
possible for the Court to pass a decree in terms of prayers in their entirety.,,,
5.3 He would further submit that the powers under Order VII, Rule 11 of CPC may be exercised by the Court at any stage before conclusion of the",,,
trial and at appropriate time a party can raise this issue which has been rightly dealt with by the learned Trial Court. In support of his submission, he",,,
has relied upon the decision of the Hon'ble Apex Court in the case of Dahiben v. Arvindbhai Kalyanji Bhanusali (Gajra) dead through legal,,,
representatives and others, (2020) 7 SCC 366. He has also relied upon unreported decision of this Court in the case of Ujiben D/o. Nramtuji Ghelaji",,,
and another v. Heli Co-operative Society Limited and others, dated 17.6.2016 rendered in First Appeal No.577 of 2016 wherein the coordinate",,,
Division Bench of this Court while relying upon the earlier decision of this Hon'ble Court has held that if by praying a relief in the plaint, attempt is",,,
made by plaintiffs to bring the suit within the prescribed period of limitation, it is found that the same is completely barred by law, the same can be",,,
rejected without trial.,,,
5.4 He would further submit that the plaintiffs by raising the plea of alleged tress-pass has tried to bring the case as if the limitation can be considered,,,
under Article 65 of the Limitation Act. But the fact remains that unless registered Sale Deeds are quashed and set aside (which are clearly barred by,,,
limitation) by which possession was handed over, it cannot be said that the defendants have committed tress-pass on the suit property. In other words,",,,
Mr. Vakil has submitted that if the Sale Deeds are sustained and the title of the defendant No.1 - Society is sustained, then the question of grant of",,,
relief of handing over possession (in absence of title) to the plaintiffs does not arise. The prayer for possession is only a consequential relief in the,,,
plaint.,,,
5.5 He would further submit that the plaintiffs have raised a contention about the non-disclosure of metes and bounds of the properties. However, the",,,
defendants have become owner of the entire property including the half share of the suit property which was sold by Dr. Sushrutbhai Motibhai Patel,",,,
brother of original plaintiff - Dr. Kiran Motibhai Patel and, therefore, original plaintiff should have joined his brother as defendant in the suit",,,
proceedings which he has not done and, therefore also, the prayers prayed for in the suits should not have been entertained.",,,
5.6 Considering all these aspects, he would submit that the Appeals may be dismissed.",,,
6. We have heard learned advocates appearing for the respective parties, perused the impugned judgment and decrees passed by the learned Trial",,,
Court and have also gone through the documents produced by both the parties in the nature of paper-book. The following facts are not in dispute :-,,,
(I) That Power of Attorney was executed on 23.12.1994 by the original plaintiff - Dr. Kiranbhai Motibhai Patel (now Decd.) in favour of defendant,,,
No.5 - Rameshbhai Ravjibhai Patel (who is close relative of the original plaintiff) permitting him to deal with the suit property and to execute all,,,
necessary documents for selling the said property.,,,
(II) Accordingly, agreement for sale was executed by defendant No.5 in favour of defendant Nos.2 and 3 on 24.7.1995 for a consideration of Rs.1.66",,,
Crores for the suit property of Civil Suit No.1786 of 2005 and an amount of Rs.20 Lacs was received by the plaintiff in his own account. Thereafter,",,,
on 18.5.1996, defendant No.5 executed registered agreement in favour of defendant Nos.2 and 3 and it was agreed to treat defendant Nos.2 and 3 as",,,
Agents of the original plaintiff and to negotiate and procure purchasers.,,,
(III) Similarly, the defendant No.5 executed agreement dated 30.5.1996 in favour of defendant Nos.1 to 4 for a sale consideration of Rs.30 Lacs for",,,
the suit property of Civil Suit No.1785 of 2005 and Rs.2 Lacs was deposited in the bank account of the original plaintiff.,,,
(IV) The defendant No.5 was served with a notice at the instance of the plaintiff on 5.3.1999 and the said notice was also published in Gujarat,,,
Samachar and Times of India newspapers asking Power of Attorney not to act as per the Power of Attorney and cancelled the Power of Attorney.,,,
(V) Registered Sale Deeds have been executed by Power of Attorney - defendant No.5 on 6.7.2000 in favour of defendant No.1 Society. As per the,,,
said registered Sale Deeds, the defendants have agreed to reimburse the amounts in different ways.",,,
(VI) Based on the registered Sale Deeds, Entry No.5019 came to be mutated in the revenue record on 9.8.2000 / 11.9.2000 with regard to the same",,,
and name of defendant No.1 Society came to be mutated.,,,
7. From the documents produced along with the First Appeals in the nature of paper-book, it appears that having become aware about the said sale",,,
transaction, in September 2000, the original plaintiffs preferred RTS Appeal No.95 of 2000 challenging Entry No.5019. Hence, it can safely be said",,,
that the original plaintiffs were aware about the transaction dated 6.7.2000 within a period of two months from thereof and he had accordingly initiated,,,
appropriate proceedings under the land laws. However, the suits came to be filed on 10.10.2005 before the learned City Civil Judge, Ahmedabad",,,
praying for various reliefs as reproduced herein above.,,,
8. Now considering the above aspects, if we peruse the plaint of Civil Suit No.1786 of 2005, translated paragraphs 15 and 16 of the plaint provided by",,,
the Translator of Gujarat High Court, which discloses the cause of action is reproduced below for ready reference :-",,,
(15) The reason of this suit is such that, the defendant no. 1 to 5 in the present suit, in collusion with each other, and on the basis of the Power of",,,
Attorney dated 23/12/1994 given to him for administering the properties of the plaintiff as stated below in the Schedule, though they were not given",,,
any such powers, they executed the so called Agreement Without Consideration dated 18/05/1996 and when the same facts came to our knowledge,",,,
we the Plaintiffs have canceled, vide the notice dated 22/02/1999 the Power of Attorney dated 23/12/1994 given to the Defendant no.5. Further, vide",,,
the Public Notice dated 05/03/1999 in the Gujarat Samachar and the Time of India newspapers, it was informed to the people that the Power of",,,
Attorney dated 23/12/1994 has been canceled. Thereafter, vide the notice dated 05/03/1999, the Agreement dated 30/05/1996 was also canceled.",,,
With regard to our notice dated 05/03/1999, when the Defendant no.1 gave his reply dated 23/04/1999, we the plaintiff came to know that, though we",,,
the plaintiff had not given any powers to the defendants for transferring our stated properties, it came to our knowledge that the defendant no.1 to 5",,,
have executed a so called Sale Deed dated 06/07/2000 and got it registered before the Office of Sub registrar, Ahmedabad vide Sr. no. 2780. The sale",,,
deed has not been executed in favor of the defendant no.1 either by we the plaintiff or any authorised person of we the plaintiff. The sale deed being,,,
ultra vires, without consideration, executed without any kind of authority, void ab initio etc, it does not convey any right of ownership or possession of",,,
the property of we the plaintiff. Though no right of defendant no.1 Society has arisen in our property, the defendant no.1 is trying to directly or",,,
indirectly enter into the transaction related to the transfer of our property and thereby creating complications and confusions and we the plaintiff have,,,
such apprehensions and thereby this Hon’ble Court has the jurisdiction in this regard.,,,
(16) The present suit of we the plaintiff is within the limitation period, because, the Defendant no.5 was required to perform the acts in accordance",,,
with the Power of Attorney dated 23/12/1994 which was given to him. Instead, he has done the acts for which he was given no powers and the",,,
defendant no.5 executed a so called agreement dated 18/05/1996 in favor of the defendents on so called terms and conditions regarding the property,,,
of we the plaintiff. Thereafter, the defendant no.5, in collusion with defendant no.1 to 4, executed a so called Earnest Money Deed against",,,
consideration of Rs.1,70,00,000/-(One crore seventy Lakh) for the property of we the plaintiff having value of Rs.3,70,00,000/- (three crore seventy",,,
lakh). When it came to our knowledge that, an Earnest Money Deed dated 30/05/1996 of the one half of the property of our brother Dr. Sushrutbhai",,,
Motibhai Patel, having value of Rs.3,70,00,000/- (Three crore seventy Lakh) and the stated Earnest Money Deed had been registered with the Office",,,
of Sub registrar, Ahmedabad vide Sr. no. 1965 on the same day, we the plaintiff have canceled the Power of Attorney assigned to the Defendant no.5",,,
vide our notice dated 22/02/1999. Thereafter, by publishing a Public Notice in the newspapers â€" the Gujarat Samachar and the Times of India on",,,
05/03/1999, the cancellation of the stated Power of Attorney was informed to the public. Vide the notice dated 05/03/1999, the Defendant no.1 to 4",,,
were informed about cancellation of the Earnest Money Deed dated 30/05/1996. Despite that, the defendants in collusion with each other and by",,,
hatching a conspiracy against us, fraudulently, executed a so called Sale Deed dated 06/07/2000, registered vide Sr.no. 2780 for the property of we the",,,
plaintiff, in favor of the Defendant no.1. The stated Sale Deed is illegal, without any consideration, unauthorized, lacking in authority, void ab initio and",,,
non est, because it has neither been executed by we the plaintiff nor by our authorised representatives. Therefore, on the basis of such so called Deed",,,
which is void ab initio, non est etc., not any ownership or occupation rights of the property of we the plaintiff are being conveyed to the Defendants.",,,
The Defendant no.1 being an illegal occupier of our property, we the plaintiffs have prayed for an injunction that, the property as stated in the",,,
Schedule below, be partitioned accordingly and the Defendant no.1 or any other defendant being an illegal occupier, its direct and open possession be",,,
handed over to us. Therefore, our suit is not barred by the limitation.""",,,
9. On the above referred grounds of cause of action, translated prayers prayed in paragraph 17 of the plaint is reproduced below for ready reference",,,
:-,,,
(17) Therefore, I pray as under :-",,,
(a) The document registered at Sr. No.2780 on 06/07/2000 in favour of the defendant no.1 pertaining to the half portion owned and occupied by the,,,
plaintiff bearing Final Plot No.431 of T.P. Scheme No.21 and Old Survey No.58 of Moje: Chhadawad of Taluka: City in the Registration District Sub-,,,
District Ahmedabad-4 (Paldi), is fake, void, unauthorised, without consideration, void-ab-initio and non-est and the said document has not been",,,
executed by the plaintiff or his authorised agent and therefore, kindly hold that my property is not transferred legally to the defendant no.1 by so called",,,
registered sale deed no.2780 dated 06/07/2000 or the defendant no.1 does not get entitled for the ownership or possession rights of my property and,,,
the plaintiff is the owner and occupier till today.,,,
- - Or - - as alternative;,,,
If the learned court comes to the conclusion that Sale Deed registered at Sr. No.2780 on 06/07/2000 is pertaining to the property of the plaintiff, kindly",,,
pass an order setting aside the same declaring it to be fake, void, without consideration, unauthorised, void-ab-initio and non-est.",,,
(b) As the plaintiff holds half undivided share in the property bearing Final Plot No.431 of T.P. Scheme No.21 of Moje: Chhadavad village, kindly",,,
divide the entire property and grant vacant and actual possession of the share of the property to the plaintiff.,,,
(c) The defendant no.1 to 4 have illegally demolished the construction carried out by the plaintiff on the half undivided portion of the property of the,,,
plaintiff bearing Final Plot No.431 of T.P. Scheme No.21 of Moje: Chhadavad without any rights and thereby, they have caused damage to the",,,
constructed property and furniture worth Rs.25,00,000/- (Rupees Twenty Five Lacs only) and thus, they have caused loss to the plaintiff. Kindly pass",,,
a decree in favour of the plaintiff to recover the said loss-damage with compounding interest @ 9% from the date of the suit from defendant no.1 to 4,",,,
whoever found responsible.,,,
(d) Kindly declare that the defendant no.1 and or the defendant no.1 to 4 are illegal trespassers in the property of the plaintiff described in the,,,
schedule below and thereby pass a decree against the defendants to handover the vacant and actual possession of the property to the plaintiff.,,,
(e) As no legal transfer of the property belonging to the plaintiff took place in favour of the defendant no.1 and as the defendant no.1 or any other,,,
defendant(s) are entitled for the ownership or possession rights, kindly pass permanent injunction order that the defendant, defendants, their agents,",,,
representatives etc. shall not carry out the construction or development activities on the said property or shall not assign possession of the property to,,,
others or shall not create any mortgage or any other encumbrance of the property.,,,
(f)Kindly grant any other relief as may deem fit and appropriate to the learned court considering the overall facts of the suit.,,,
(g) Kindly grant the entire cost of the suit from the defendants.""",,,
10. Similar are the averments of cause of action in another suit being Civil Suit No.1785 of 2005. However, only the registration number of the",,,
document of sale and the amount of sale consideration would vary and, therefore, the same have not been reproduced.",,,
11. We have also closely perused the contents of both suits and the same have been read as a whole and not in compartment as observed by Hon'ble,,,
Apex Court in the case of Sopan Sukhdeo Sable and others v. Assistant Charity Commissioner (Supra) and others and in the case of Raghwendra,,,
Sharan Singh v. Ram Prasanna Singh (Dead) by Legal representatives (Supra). We have also gone through applications Exh.103 and 107 preferred by,,,
the defendant No.1 under Order VII, Rule 11 (d) CPC. It is true that the original plaintiff by notice dated 5.3.1999 directed the defendant No.5 -",,,
Power of Attorney not to act further as per the Power of Attorney and also published the notice to the said effect in the local newspapers declaring,,,
cancellation of the Power of Attorney. But the defendants at their own risk had entered into Sale Deed on 6.7.2000 and the same was registered with,,,
the Competent Authority in accordance with law. However, it is also not in dispute that the original plaintiff having come to know about registration of",,,
the Sale Deed in connection with the suit properties of the original plaintiffs, immediately i.e. within a period of two months i.e. in September 2000,",,,
initiated proceedings under the land laws seeking cancellation of Entry posted in pursuance of the Sale Deed instead of challenging the Sale Deed on,,,
the grounds referred in the plaint. The suit came to be filed only in October 2005 i.e. after more than five years from the date of registration of the,,,
Sale Deeds. The defendant No.1 has specifically raised this contention in the applications Exh.103 and 107 respectively and if we peruse the reply of,,,
the plaintiffs, they have not denied this aspect and have only stated that the suit properties have been sold fraudulently and issue of limitation is a",,,
mixed question of facts and law and, therefore, the applications be rejected. Even before this Court, the appellants have mainly argued this aspect",,,
only.,,,
12. If we read the plaints of both the suits as a whole, we are of the opinion that the plaintiffs by raising the plea of tress-passing have tried to bring",,,
the suits within the prescribed period of limitation under Article 65 of the Limitation Act.,,,
13. It is an undisputed fact that with regard to the sale transaction, documents have been registered and the property is already transferred in the",,,
name of the respective defendant. Hence, unless the sale transaction is quashed and set aside on the grounds claimed by the plaintiffs, the case of",,,
59.,"Description of suit
To cancel or set aside an instrument or
decree or for the rescission of a
contract.","Period of limitation
Three years","Time from which period begins to run
When the facts entitling the plaintiff to have
the instrument or decree cancelled or set aside
or the contract rescinded first become known
to him.
evidence on record.""",,,
20. In our opinion, the decision of the Hon'ble Apex Court in the case of Dahiben v. Arvindbhai Kalyanji Bhanusali (Gajra) dead through legal",,,
representatives and others (Supra) would squarely cover the case on hand. If the main relief of quashment of Sale Deeds is not maintainable, the",,,
consequential relief cannot be granted. Again, the Hon'ble Apex Court has held that there is a need of reading the entire plaint as a whole and as",,,
stated herein above, in the present case, the plaint has been cleverly drafted by not disclosing about knowledge of the Sale Deeds immediately from",,,
the date of execution thereof nor rebutting the same in the reply filed by the plaintiffs to the applications Exh.103 and 107 filed by defendant No.1,,,
under Order VII, Rule 11 (d) CPC.",,,
21. Considering the peculiar facts and circumstances of the case stated herein above, we are of the opinion that the learned Trial Court has committed",,,
no error in accepting the applications of the defendant No.1 and thereby rejecting the plaints on the ground of limitation. Hence, both the appeals stand",,,
dismissed.,,,
(A. J. DESAI, J)",,,
(ANIRUDDHA P. MAYEE, J.)",,,
22. Upon pronouncement of the judgment, a request has been made by Mr. Rohan Shah, learned advocate for the appellants to direct the parties to",,,
maintain status quo to enable the appellants to challenge this order before Hon'ble Apex Court. Mr. A.S. Vakil, learned advocate appearing for the",,,
defendant No.1 has opposed this request stating that during the pendency of the appeals, no stay has been granted by this Court. The stay granted /",,,
extended by the Trial Court was only upto ""filing"" of the Appeals. We are of the opinion that considering the fact that the judgment was reserved and",,,
no action has been taken by any parties, the status quo granted by learned Trial Court is hereby extended for a period of four weeks from today. The",,,
defendants shall not transfer and/or create any right over the suit properties in any manner whatsoever for a period of four weeks.,,,
