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SCA/543/2011 6/ 6 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL
CIVIL APPLICATION No. 543 of 2011
=========================================================
SABIHA
VALI MAHMED PATEL THRO' POA VALI MAHMAD PATEL & 1 - Petitioner(s)
Versus
ABDULLATIF
HUSENVALI JIRU'S THRO'POA ISMAIL YUSUF SOJRA & 11 - Respondent(s)
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Appearance
:
MR
MM SAIYED for
Petitioner(s) : 1 - 2.
None for Respondent(s) : 1 -
12.
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CORAM
:
HONOURABLE
MR.JUSTICE KS JHAVERI
Date
: 24/01/2011
ORAL
ORDER
1. The
present petition is filed against the order dated 02.11.2010 passed
by the 6th Additional Senior Judge, Bharuch upon Exhibit
Nos. 22, 24, 28 & 30 in Regular Civil Suit No. 229 of 2009.
2. It
is the case of the petitioners that partition took place between
legal heirs of Ahmed Musa and Vali Musa and on account of partition
ten properties vide Account No. 39 were mutated in the name of legal
heirs of Ahmed Musa while nine properties vide account no. 40 were
mutated in the name of Vali Musa. The original plaintiffs-respondent
nos. 1 to 4 are grand children of Vali Musa. In the year 2001, Civil
Suit No. 164/2001 was filed against the respondent nos. 2 to 4 and
later on respondent no. 1 also became a party to the suit wherein
details of partition of the year 1999 were mentioned.
2.1 On
20.04.2006, the petitioner no. 1 purchased a parcel of land
admeasuring 60 Are bearing survey no. 37/1 of village Kantharia vide
registered sale deed dated 01.09.2005 executed by one Mr. Margha in
the capacity of Power of Attorney holder of land owners. Thereafter,
the petitioner no. 1 sold suit land to Mr. Ibrahim Adam Patel and on
his death the name of petitioner no. 2 came to be mutated in the
revenue records in the capacity of owner and occupier of said land.
In the year 2009 the respondent nos. 1 to 4 filed Suit No. 229/2009
against the petitioners and respondent nos. 5 to 13 and prayed for
declaration that sale deeds of suit properties are not binding to
them and other co-owners etc.
2.2 The
petitioners preferred applications under Order 14 Rule 2 of the Civil
Procedure Code below Exihibits making a prayer to frame primary
issues of limitation as the suit no. 229/2009 was as per them time
barred. The trial court vide the impugned order rejected the same.
Hence the present petition is preferred.
3. Heard
Mr. Mihir Thakore, learned Senior Counsel appearing with Mr. Saiyed
for the petitioners. Mr. Thakore has submitted that the trial court
ought to have considered the fact that the entire suit can be decided
on the basis of primary issue of limitation. He has relied upon a
decision of this court rendered in First Appeal No. 81 of 2010 on
23.03.2010, more particularly, paras 11 & 19 which read as under:
“11. While
arguing the question of limitation, learned counsel for the
appellants has raised question that the appellants have got in their
favour a registered document executed by defendant Nos. 1 and 4 on
17.5.1995 and part consideration of Rs. 2,55,000/- was paid. Further
the possession of the land was conveyed to the brother of the
plaintiffs with their consent on 2.3.1998 and therefore they have a
right to maintain the Suit and the Suit is within limitation because
the agreement in their favour was cancelled in the year 2003 and they
were in possession pursuant to the agreement and handed over
possession in pursuance of that agreement possession was handed over
to their brother.
…
19. The
next question which comes before us is that Sale Deeds in favour of
defendant Nos. 6 and 7 were executed on 11.9.1997 and were
registered. The registration itself is a deemed notice of refusal of
performance by the original owners – defendant Nos. 1 to 4 to
the plaintiffs. Not only this, their own admission in their evidence
that the Suit was filed by defendant No. 9 being Civil Suit No. 93 of
1999 was at the behest of the plaintiffs. Thus, this is more than a
notice to the defendants. They admit that in 1999 when they got the
Suit filed, they had known of the sale in favour of defendant Nos. 6
and 7. It cannot, there, be said that they had no notice of the
impugned Sale Deeds which are sought to be cancelled in the year
1999. In that background the Suit would be barred by limitation. A
reference in this regard may be made to the following observations of
the Hon’ble Supreme Court in the case of PANCHANAN DHARA VS.
MONMATHA NATH MAITY reported in (2006) 5 SCC 340 at paragraph No. 20:
“Contention
of Mr. Mishra as regards the applicability of the first or the second
part of Article 54 of the Limitation Act will have to be judged
having regard to the aforementioned findings of fact. A plea of
limitation is a mixed question of law and fact. The question as to
whether a suit for specific performance of contract will be barred by
limitation or not would not only depend upon the nature of the
agreement but also on the conduct of the parties and also as to how
they understood the terms and conditions of the agreement. It is not
in dispute that the suit for specific performance of contract would
be governed by Article 54 of the Limitation Act, 1963. While
determining the applicability of the first or the second part of the
said provision, the Court will firstly see as to whether any time was
fixed for performance of the agreement of sale and if it was so
fixed, whether the suit was filed beyond the prescribed period unless
any case of extension of time for performance was pleaded and
established. When, however, no time is fixed for performance of
contract, the Court may determine the date on which the plaintiff had
notice of refusal on the part of the defendant to perform the
contract and in that event the suit is required to be filed within a
period of three years therefrom.”
A
reference may also be made to the following observations of the
Hon’ble Supreme Court in the case of PREM SINGH VS. BIRBAL reported
in (2006) 5 SCC 353 at para 20:
“If
the plaintiff is in possession of a property, he may file a suit for
declaration that the deed is not binding upon him but if he is not in
possession thereof, even under a void transaction, the right
by way of adverse possession may be claimed. Thus, it is not correct
to contend that the provisions of the Limitation Act would have no
application at all in the event the transaction is held to be void.”
4. As
a result of hearing and perusal of records, this court is of the
opinion that the trial court has gone into the evidence in detail and
has come to the conclusion that the issue of limitation in facts of
the present case cannot be decided without evidence being recorded
and therefore tried as a preliminary issue. The trial court in paras
6.2 & 6.3 has in detail dealt with the issue of limitation and
observed that in Regular Civil Suit No. 139/1987, the original
plaintiff no .1 was shown as defendant no. 12 whereas the rest of the
plaintiffs were not made a party. There is no clarification from the
records whether the defendant no. 12 who is shown to be resident of
Bolston, U.K was ever served with the summons of the above suit or
was the service to him dispensed with. From the plaint of Regular
Civil Suit No. 164/2001 it is apparent that at the time of
institution only the original plaintiffs nos. 2 to 4 were joined as
defendant nos. 4 to 6 and the original plaintiff no. 1 was later
joined as defendant no. 7 upon his application. In that view of the
matter, this court is of the opinion that the trial court was just
and proper in concluding that the evidence was required to be led and
the issue of limitation cannot be decided as a preliminary issue.
4.1 As
far as the decision of this court in First Appeal No. 81/2010 is
concerned, this court is of the view that the same shall not be
applicable to the facts of the present case inasmuch as the prayer
no. 2 prayed for in the suit no. 229/2008 is qua the year 2008 and it
shall be for the court to decide at the time of trial instead of
deciding the same as a preliminary issue.
5. In
the premises aforesaid, the present petition is devoid of any merits
and is accordingly dismissed.
(K.S.
JHAVERI, J.)
Divya//
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