1. Being aggrieved and dissatisfied with the judgment and order dated 21.8.2014 passed by the learned Civil Court in Regular Civil Suit No.336 of 2012 and judgment and order dated 15.12.2018 passed by the learned Additional District Judge, Bhuj – Kutch, in Regular Civil Appeal No.37 of 2014 the appellant has preferred present Second Appeal under Section 100 of the Code of Civil Procedure, 1908.

2. The short facts giving rise to present appeal are as under:-

2.1 The appellant herein is the original plaintiff and the respondents herein are the original defendants.

2.2 On 03.04.1989, the plaintiff purchased two plots being plot no. 23 and 24 by registered sale deeds. One Mr Navin Thakkar created a bogus and forged power of attorney who thereafter sold plot no. 23 to defendant no. 3 by registered sale deed and plot no. 24 to defendant nos. 1 and 2 by registered sale deed on 15.09.1993.

2.3 On 08.01.1996 both the plots were sold to defendant no. 5. On 28.10.2006, the plaintiff issued a notice in the newspaper about forged power of attorney and that buyers ought to be cautious about entering into any transactions with respect to the plots in the ownership and possession of the plaintiff. In 2011, the defendants started interfering with the possession of the plaintiff and therefore the plaintiff came to know about the registered sale deeds executed on the basis of a bogus power of attorney and on 19.11.2012, the plaintiff filed a suit for declaration, injunction and cancellation of all four sale deeds before the 3rd (Adhoc) Additional Civil Judge, BhujKutch being Regular Civil Suit No. 336 of 2012 on the ground that the sale deeds were executed by creating fraudulent power of attorney.

2.4 The learned 3rd (Adhoc) Additional Civil Judge has rejected the application below Exh. 31 application under Order 7 Rule 11(d) in Regular Civil Suit No. 336 of 2012 by order dated 21.8.2014 filed by the respondent No.5.

2.5 In the amended suit following relief/s have been prayed for:-

“Be pleased to issue summons to the defendants of this case through the Hon’ble Court and declare that out of the land bearing Non-Agricultural R.S. No.357 and 365/2 of Village Madhapar Nanayaksha of Taluka: Bhuj, the plaintiff is the exclusive owner and occupier of Plot no.23 vide Registered Sale Deed No.868 dated 03/04/1989 and Plot No.24 vide Registered Sale Deed No.867 dated 03/04/1989 and the plaintiff is the sole owner and occupier of the said plot no.23 and 24 till today and it has been recorded in my name in the revenue records, too. I further pray to declare all four sale deeds viz. Registered Sale Deed No.2914 dated 15/09/1993 and Registered Sale Deed No.172 dated 08/01/1996 for Plot No.23 and Registered Sale Deed No.2913 dated 15/09/1993 and Registered Sale Deed No.173 dated 08/01/1996 for Plot No.24 executed by my so called power of attorney holder and Registered Sale Deed No.449 dated 15/01/2008 executed by defendant no.5 to be canceled as the same are illegal and with misleading facts and I also pray to declare so called Power of Attorney executed in the name of Mr.Navin Thakkar (Who has died). Moreover, till the final disposal of this suit, be pleased to grant permanent injunction restraining the present so called holder of both the said plots i.e. Defendant No.5 from further sell, transfer, mortgage or entering into any new agreement, sale deed through his agent, servants, representatives etc. and also grant injunction restraining the defendants obstructing the plaintiff’s possession of the the said plots in the local records. Moreover, I pray to grant all other and further relief admissible as per law.”

2.6 Against the order dated 21.8.2014, passed below Exh.31 application in Regular Civil Suit No. 336 of 2012 by the learned 3rd (Adhoc) Additional Civil Judge, the present appellant has approached the Court of learned 4th Additional District Judge, Bhuj-Kutch by filing Regular Civil Appeal No. 37 of 2014.

2.7 After hearing both the respective parties, the learned 4th Additional District Judge, Bhuj-Kutch has vide order dated 15.12.2018 rejected the Appeal being Regular Civil Appeal No.37 of 2014 filed by the present appellant.

2.8 The crux of the matter is that the Ld. Trial Court as well as the Ld. First Appellate Court have allowed the application under Order 7 Rule 11 of the C.P.C. preferred by the original defendants and have rejected the plaint.

2.9 Being aggrieved and dissatisfied with the judgment and order dated 15.12.2018 passed by the learned Additional District Judge, Bhuj – Kutch, in Regular Civil Appeal No.37 of 2014 the appellant has preferred present Second Appeal.

3. The learned First Appellate Court has framed following issues:-

“(1) Whether the defendant / original plaintiff proves that the impugned judgment and decree passed by the learned Trial Court is arbitrary, illegal and is against the settled principles of law

(2) Whether the impugned judgment and decree passed by the learned trial court requires any interference of this appellate Court”

3.1 The learned First Appellate Court has given following answers to the aforesaid issues:-

“(1) In negative

(2) As per final order”

4. Thereafter, learned Appellate Court has passed following impugned order:-

“(1) Present Regular Civil Appeal of original plaintiff is hereby rejected

(2) The Judgment & Decree passed by the Ld. 3rd (Adhoc) Addl. Senior Civil Judge, Bhuj-Kutch in Regular Civil Suit No. 336 of 2012 dated 21-08- 2014, is hereby, confirmed.

(3) No order as to cost.

(4) Decree is to be drawn accordingly.

5. I have heard Mr. Anshul N. Shah, learned Counsel for the appellant, Mr. S.P. Majmudar, learned Counsel for the respondent No.1 and Mr. Meet M Katira and Mr. Mrugesh A. Barot, learned Counsels for the respondent No.5. Though rule served to respondent Nos. 2, 3 and 4 no one has appeared on their behalf.

6. Learned Counsel for the appellant has submitted that the Courts below have failed to appreciate that the plaint cannot be rejected in part and the other prayers for declaration, injunction and protecting the possession of the plaintiff still survive, since the plaintiff is admittedly in possession of the suit property.

6.1 Learned Counsel for the appellant further submitted that the Courts below have failed to appreciate that the question of limitation is a mixed question of fact and law which cannot be gone into while deciding an application under O.7 R.11 of the CPC.

6.2 Learned Counsel for the appellant further submitted that learned Appellate Court has not considered the oral as well as documentary evidence in its true spirit. He further submitted that the impugned judgment is contrary to facts and evidence on record. He further submitted that the appeal may be allowed and the impugned judgment and order may be quashed and set aside.

7. Learned advocate for the appellant has relied upon the following decisions of this Court and Hon’ble Apex Court:-

7.1 In Second Appeal No.156 of 2020 in case of Raniben Wd/o Mafabhai Bhil vs. Natvarsing Ratansing Thakor this Court has observed as under:-

“11. In present case, on perusal of the judgment and order of the First Appellate Court, it is abundantly clear that the First Appellate Court has failed to discharge obligation vested on it as a First Appellate Court and, therefore, in my view, the impugned judgment and order of the First Appellate Court deserves to be quashed and set aside and the same deserves to be remanded to the First Appellate Court for considering the same afresh on merits and in accordance with law after framing points of determination in accordance with Order 41 Rule 11, 14, 15, 31 and 33 of the Code.

12. For the foregoing reasons, the present second appeal is allowed. The impugned judgment and order dated 29.02.2020 passed by the learned 3rd Additional District Judge, Deesa in Regular Civil Appeal No.21 of 2015 is hereby quashed and set aside and the matter is remanded back to the First Appellate Court to decide the same afresh in accordance with law and on merits formulating the points of determination. The First Appellate Court shall decide the matter as expeditiously as possible and preferably within a period of six months from the date of receipt of certified copy of present order without being influenced by the earlier orders passed by the First Appellate Court and/or by this Court after affording an opportunity of hearing to the learned counsel for the respective parties. The parties shall also cooperate in the proceedings and shall not seek any unnecessary adjournment. 13. It is clarified that the matter is remanded only on the ground as referred to hereinabove and this Court has not entered into the merits of the case. 14. Pending civil application shall stands disposed of accordingly.”

7.2 In the decision of Hon’ble Apex Court in case of K.Karuppuraj vs. M.Ganesan reported in (2021) 10 SCC 777, [LQ/SC/2021/3123 ;] ">(2021) 10 SCC 777, [LQ/SC/2021/3123 ;] [LQ/SC/2021/3123 ;] the Hon’ble Apex Court has held as under:-

“9. In the case of Emmsons International Limited and Anr. (supra) while considering the scope and ambit of exercise of powers under Section 96 of CPC by the Appellate Court and after considering the decisions of this Court in the cases of Madhukar and Ors. Vs. Sangram and Ors., (2001) 4 SCC 756 [LQ/SC/2001/1072] ; H.K.N. Swami Vs. Irshad Basith (Dead) by LRs., (2005) 10 SCC 243 and Jagannath Vs. Arulappa and Anr., (2005) 12 SCC 303, [LQ/SC/2005/120] it is held that sitting as a Court of First Appeal, it is the duty of the Appellate Court to deal with all the issues and the evidence led by the parties before recording its findings.

10. In H. Siddhqui, it is observed and held in para 21 as under:-

21. The said provisions provide guidelines for the appellate court as to how the court has to proceed and decide the case. The provisions should be read in such a way as to require that the various particulars mentioned therein should be taken into consideration.

Thus, it must be evident from the judgment of the appellate court that the court has properly appreciated the facts/evidence, applied its mind and decided the case considering the material on record. It would amount to substantial compliance with the said provisions if the appellate court's judgment is based on the independent assessment of the relevant evidence on all important aspects of the matter and the findings of the appellate court are well founded and quite convincing. It is mandatory for the appellate court to independently assess the evidence of the parties and consider the relevant points which arise for adjudication and the bearing of the evidence on those points. Being the final court of fact, the first appellate court must not record mere general expression of concurrence with the trial court judgment rather it must give reasons for its decision on each point independently to that of the trial court. Thus, the entire evidence must be considered and discussed in detail. Such exercise should be done after formulating the points for consideration in terms of the said provisions and the court must proceed in adherence to the requirements of the said statutory provisions. (Vide Sukhpal Singh v. Kalyan Singh [AIR 1963 SC 146 [LQ/SC/1962/211] ] , Girijanandini Devi v. Bijendra Narain Choudhary [AIR 1967 SC 1124 [LQ/SC/1966/149] ] , G. Amalorpavam v. R.C. Diocese of Madurai [(2006) 3 SCC 224] [LQ/SC/2006/200] , Shiv Kumar Sharma v. Santosh Kumari [(2007) 8 SCC 600] [LQ/SC/2007/1131] and Gannmani Anasuya v. Parvatini Amarendra Chowdhary [(2007) 10 SCC 296 [LQ/SC/2007/750] : AIR 2007 SC 2380 [LQ/SC/2007/750] ] .)”

11. Applying the law laid down by this Court in the aforesaid decisions, if the impugned judgment and order passed by the High Court is considered, in that case, there is a total non-compliance of the provisions of the Order XLI Rule 31 CPC. The High Court has failed to exercise the jurisdiction vested in it as a First Appellate Court; the High Court has not at all re-appreciated the entire evidence on record; and not even considered the reasoning given by the learned Trial Court, in particular, on findings recorded by the learned Trial Court on the issue of willingness. Therefore, as such, the impugned judgment and order passed by the High Court is unsustainable and in normal circumstances we would have accepted the request of the learned senior counsel appearing on behalf of the respondent to remand the matter to the High Court for fresh consideration of appeal. However, even on other points also, the impugned judgment and order passed by the High Court is not sustainable. We refrain from remanding the matter to the High Court and we decide the appeal on merits.”

7.3 In the decision of Hon’ble Apex Court in case of Sejal Glass vs. Navilan Merchants Pvt. Ltd. reported in (2018) 11 SCC 780, [LQ/SC/2017/1213] the Hon’ble Apex Court has held as under:-

“3) In our view, the impugned judgment is wrong on principle. Order VII Rule 11 of the Code of Civil Procedure, 1908 which reads as follows:

“11. Rejection of plaint.- The plaint shall be rejected in the following cases:-

(a) where it does not disclose a cause of action;

(b) where the relief claimed is undervalued, and the plaintiff, on being required by the Court to correct the valuation within a time to be fixed by the Court, fails to do so;

(c) where the relief claimed is properly valued but the plaint is written upon paper insufficiently stamped, and the plaintiff, on being required by the Court to supply the requisite stamp-paper within a time to be fixed by the Court, fails to do so;

(d) where the suit appears from the statement in the plaint to be barred by any law;

(e) where it is not filed in duplicate;

(f) where the plaintiff fails to comply with the provisions of rule 9:

Provided that the time fixed by the Court for the correction of the valuation or supplying of the requisite stamp-paper shall not be extended unless the Court, for reasons to be recorded, is satisfied that the plaintiff was prevented by any cause of an exceptional nature for correcting the valuation or supplying the requisite stamp-paper, as the case may be, within the time fixed by the Court and that refusal to extend such time would cause grave injustice to the plaintiff.” What is important to remember is that the provision refers to the “plaint” which necessarily means the plaint as a whole.

It is only where the plaint as a whole does not disclose a cause of action that Order VII Rule 11 springs into being and interdicts a suit from proceeding.

4) It is settled law that the plaint as a whole alone can be rejected under Order VII Rule 11. In Maqsud Ahmad v. Mathra Datt & Co., A.I.R. 1936 Lahore 1021 at 1022, the High Court held that a note recorded by the trial Court did not amount to a rejection of the plaint as a whole, as contemplated by the CPC, and, therefore, rejected a revision petition in the following terms:-“There is no provision in the Civil Procedure Code for the rejection of a plaint in part, and the note recorded by the trial Court does not, therefore, amount to the rejection of the plaint as contemplated in the Civil Procedure Code.”

5) Similarly, in Bansi Lal v. Som Parkash, A.I.R. 1952 Punjab 38 at 39, the High Court held:-

“But the real question which arises in this appeal is whether there can be a partial rejection of the plaint. Mr. Chiranjiva Lal Aggarwala submits that a plaint can either be rejected as a whole or not at all, and he has relied on a statement of the law given in Mulla’s Civil Procedure Code at page 612 where it is stated: “This rule (Order 7, Rule 11) does not justify the rejection of any particular portion of a plaint.” In support of this statement the learned author has relied on ‘Raghubans Puri v. Jyotis Swarupa’, 29 All 325, ‘Appa Rao v. Secretary of State’, 54 Mad 416 [LQ/MadHC/1930/141] , and ‘Maqsud Ahmad v. Mathra Datt & Co.’, AIR 1936 Lah 1021. In reply to this argument Mr. Puri has submitted that it is really five suits which had all been combined in one and therefore in this particular case the rejection of a part was nothing more than rejection of three plaints. But the suit was brought on one plaint and not five suits were brought. The law does not change merely because the plaintiff chooses in one suit to combine several causes of action against several defendants which the law allows him. It still remains one plaint and therefore rejection of the plaint must be as a whole and not as to a part. I am therefore of the opinion that the learned Senior Subordinate Judge was in error in upholding the rejection as to a part and setting aside the rejection in regard to the other part. This appeal which I am treating as a petition for revision must therefore be allowed and the rule made absolute, and I order accordingly.”

6) In (Sree Rajah) Venkata Rangiah Appa Rao Bahadur and another v. Secretary of State and others, A.I.R. 1931 Madras 175 at 176, the Madras High Court held:-

“Referring to S. 54 of the old Civil Procedure Code, the learned Judge states that that section only provides for the rejection of a plaint in the event of any matters specified in that section not being complied with and it does not justify the rejection of any particular portion of a plaint. S. 54 now corresponds to O. 7, R. 11, Civil Procedure Code. The plain meaning of that rule seems to be that if any of the defects mentioned therein is found to exist in any case, the plaint shall be rejected as a whole. It does not imply any reservation in the matter of the rejection of the plaint.

Non-compliance with the requisites of S. 80, Civil Procedure Code, was taken to be a ground covered by Cl. (d) of R. 11, above referred to. Even if it should be taken that that clause does not strictly apply to the present case, I must hold that the suits are liable to dismissal on account of noncompliance with S. 80, Civil Procedure Code.” It was further found that if the suit was dismissed for want of notice against the Government under Section 80 CPC, it cannot be allowed to proceed against the other defendants for the reason that the Government’s right to resume inam lands, on the facts of that case, stands unaffected, and that being so, the plaintiff’s claim to recover possession of such lands from other defendants would also fall to the ground for the simple reason that they have no right then to resume those inams. It was, therefore, held on the peculiar facts of that case that for the reasons given the suit would fail as a whole.

8) We are afraid that this is a misreading of the Madras High Court judgment. It was only on the peculiar facts of that case that want of Section 80 CPC against one defendant led to the rejection of the plaint as a whole, as no cause of action would remain against the other defendants. This cannot elevate itself into a rule of law, that once a part of a plaint cannot proceed, the other part also cannot proceed, and the plaint as a whole must be rejected under Order VII Rule 11. In all such cases, if the plaint survives against certain defendants and/or properties, Order VII Rule 11 will have no application at all, and the suit as a whole must then proceed to trial.

9) If only a portion of the plaint, as opposed to the plaint as a whole is to be struck out, Order VI Rule 16 of the CPC would apply. Order VI Rule 16 states as follows:-

“16. Striking out pleadings.- The Court may at any stage of the proceedings order to be struck out or amended any matter in any pleading

a) which may be unnecessary, scandalous, frivolous or vexatious, or

b) which may tend to prejudice, embarrass or delay the fair trial of the suit, or

c) which is otherwise an abuse of the process of the Court.” It is clear that Order VI Rule 16 would not apply in the facts of the present case. There is no plea or averment to the effect that, as against the Directors, pleadings should be struck out on the ground that they are unnecessary, scandalous, frivolous, vexatious or that they may otherwise tend to prejudice, embarrass or delay the fair trial of the suit or that it is otherwise an abuse of the process of the Court.

11) This being the case, we set aside the impugned judgment and grant the defendants in the suit a period of eight weeks from today within which to file their written statement after which the suit will proceed to be tried.”

7.4 In the decision of Hon’ble Apex Court in case of C. Natarajan vs. Ashim Bai and another reported in (2007) 14 SCC183, the Hon’ble Apex Court has held as under:-

“14. If the plaintiff is to be granted a relief of recovery of possession, the suit could be filed within a period of 12 years. It is one thing to say that whether such a relief can be granted or not after the evidences are led by the parties but it is another thing to say that the plaint is to be rejected on the ground that the same is barred by any law. In the suit has been filed for possession, as a consequence of declaration of the plaintiffs title, Article 58 will have no application.

16. The law of limitation relating to the suit for possession has undergone a drastic change. In terms of Articles 142 and 144 of the Limitation Act, 1908, it was obligatory on the part of the plaintiff to aver and plead that he not only has title over the property but also has been in possession of the same for a period of more than 12 years. However, if the plaintiff has filed the suit claiming title over the suit property in terms of Articles 64 and 65 of the Limitation Act, 1963, burden would be on the defendant to prove that he has acquired title by adverse possession.

17. In Md. Mohammad Ali (dead) by LRs. v. Jagdish Kalita and Ors. [(2004) 1 SCC 271] [LQ/SC/2003/999 ;] ">[(2004) 1 SCC 271] [LQ/SC/2003/999 ;] [LQ/SC/2003/999 ;] , it was held :

By reason of the Limitation Act, 1963 the legal position as was obtaining under the old Act underwent a change. In a suit governed by Article 65 of the 1963 Limitation Act, the plaintiff will succeed if he proves his title and it would no longer be necessary for him to prove, unlike in a suit governed by Articles 142 and 144 of the Limitation Act, 1908, that he was in possession within 12 years preceding the filing of the suit. On the contrary, it would be for the defendant so to prove if he wants to defeat the plaintiffs claim to establish his title by adverse possession. {See also P.T. Munichikkanna Reddy & Ors. v. Revamma & Ors. [(2007) 6 SCC 29]; Binapani Paul v. Pratima Ghosh & Ors. [(2007) 6 SCC 100] [LQ/SC/2007/588] ; Kamakshi Builders v. Ambedkar Educational Society & Ors. [AIR 2007 SC 2191 [LQ/SC/2007/768] ] and Bakhtiyar Hussai (dead) throuth LRs v. Hafiz Khan & Ors. [CA Nos.497-498/01 decided on 24.09.2007]}.

18. In S.M. Karim (supra), this Court was considering a question of Benami as also adverse possession. In the aforementioned context, it was opined :

Adverse possession must be adequate in continuity, in publicity and extent and a plea is required at the least to show when possession becomes adverse so that the starting point of limitation against the party affected can be found. There is no evidence here when possession became adverse, if it at all did, and a mere suggestion in the relief clause that there was an uninterrupted possession for "several 12 years" or that the plaintiff had acquired "an absolute title" was not enough to raise such a plea. Long possession is not necessarily adverse possession and the prayer clause is not a substitute for a plea. The cited cases need hardly be considered, because each case must be determined upon the allegations in the plaint in that case. It is sufficient to point out that in Bishun Dayal v. Kesho Prasad and another (A.I.R. 1940 P.C. 202), the Judicial Committee did not accept an alternative case based on possession after purchase without a proper plea. {See also Prem Lala Nahata & Anr. v. Chandi Prasad Sikaria [(2007) 2 SCC 551] [LQ/SC/2007/128] }.

Such a question does not arise for our consideration herein.

19. We have noticed hereinbefore that the defendant, inter alia, on the plea of identification of the suit land vis-`-vis the deeds of sale, under which the plaintiff has claimed his title, claimed possession. The defendant did not accept that the plaintiff was in possession. An issue in this behalf is, therefore, required to be framed and the said question is, therefore, required to be gone into. Limitation would not commence unless there has been a clear and unequivocal threat to the right claimed by the plaintiff. In a situation of this nature, in our opinion, the application under Order VII Rule 11(d) was not maintainable. The contentions raised by the learned counsel for the respondent may have to be gone into at a proper stage. Lest it may prejudice the contention of one party or the other at the trial, we resist from making any observations at this stage.”

7.5 In the decision of Hon’ble Apex Court in case of Chhotanben and another vs. Kiritbhai Jalkrushnabhai Thakkar and others reported in (2018) 6 SCC 422, [LQ/SC/2018/468] the Hon’ble Apex Court has held as under:-

“14. After having cogitated over the averments in the plaint and the reasons recorded by the Trial Court as well as the High Court, we have no manner of doubt that the High Court committed manifest error in reversing the view taken by the Trial Court that the factum of suit being barred by limitation, was a triable issue in the fact situation of the present case. We say so because the appellants (plaintiffs) have asserted that until 2013 they had no knowledge whatsoever about the execution of the registered sale deed concerning their ancestral property. Further, they have denied the thumb impressions on the registered sale deed as belonging to them and have alleged forgery and impersonation. In the context of totality of averments in the plaint and the reliefs claimed, which of the Articles from amongst Articles 56, 58, 59, 65 or 110 or any other Article of the Limitation Act will apply to the facts of the present case, may have to be considered at the appropriate stage.

15. What is relevant for answering the matter in issue in the context of the application under Order VII Rule 11(d), is to examine the averments in the plaint. The plaint is required to be read as a whole. The defence available to the defendants or the plea taken by them in the written statement or any application filed by them, cannot be the basis to decide the application under Order VII Rule 11(d). Only the averments in the plaint are germane. It is common ground that the registered sale deed is dated 18th October, 1996. The limitation to challenge the registered sale deed ordinarily would start running from the date on which the sale deed was registered. However, the specific case of the appellants (plaintiffs) is that until 2013 they had no knowledge whatsoever regarding execution of such sale deed by their brothers - original defendant Nos.1 & 2, in favour of Jaikrishnabhai Prabhudas Thakkar or defendant Nos.3 to 6. They acquired that knowledge on 26.12.2012 and immediately took steps to obtain a certified copy of the registered sale deed and on receipt thereof they realised the fraud played on them by their brothers concerning the ancestral property and two days prior to the filing of the suit, had approached their brothers (original defendant Nos.1 & 2) calling upon them to stop interfering with their possession and to partition the property and provide exclusive possession of half (1/2) portion of the land so designated towards their share. However, when they realized that the original defendant Nos.1 & 2 would not pay any heed to their request, they had no other option but to approach the court of law and filed the subject suit within two days therefrom. According to the appellants, the suit has been filed within time after acquiring the knowledge about the execution of the registered sale deed. In this context, the Trial Court opined that it was a triable issue and declined to accept the application filed by respondent No.1 (defendant No.5) for rejection of the plaint under Order VII Rule 11(d). That view commends to us.

16. The High Court on the other hand, has considered the matter on the basis of conjectures and surmises and not even bothered to analyse the averments in the plaint, although it has passed a speaking order running into 19 paragraphs. It has attempted to answer the issue in one paragraph which has been reproduced hitherto (in paragraph 7). The approach of the Trial Court, on the other hand, was consistent with the settled legal position expounded in Saleem Bhai and Others Vs. State of Maharashtra and Others1, Mayar (H.K.) Ltd. and Others Vs. Owners & Parties, Vessel M.V. Fortune Express and Others2 and also T. Arivandandam Vs. T.V. Satyapal and Another3.

19. In the present case, we find that the appellants (plaintiffs) have asserted that the suit was filed immediately after getting knowledge about the fraudulent sale deed executed by original defendant Nos.1 & 2 by keeping them in the dark about such execution and within two days from the refusal by the original defendant Nos.1 & 2 to refrain from obstructing the peaceful enjoyment of use and possession of the ancestral property of the appellants. We affirm the view taken by the Trial Court that the issue regarding the suit being barred by limitation in the facts of the present case, is a triable issue and for which reason the plaint cannot be rejected at the threshold in exercise of the power under Order VII Rule 11(d).

20. In the above conspectus, we have no hesitation in reversing the view taken by the High Court and restoring the order of the Trial Court rejecting the application (Exh.21) filed by respondent No.1 (defendant No.5) under Order VII Rule 11(d). Consequently, the plaint will get restored to its original number on the file of the IVth Additional Civil Judge, Anand, for being proceeded further in accordance with law. We may additionally clarify that the Trial Court shall give effect to the order passed below Exh.17 dated 20th January, 2016, reproduced in paragraph 5 above, and take it to its logical end, if the same has remained unchallenged at the instance of any one of the defendants. Subject to that, the said order must be taken to its logical end in accordance with law.

21. Accordingly, this appeal succeeds and is allowed in the above terms, with no order as to costs.”

7.6 In the decision of this Court in case of Shantibhai Somabhai Patel vs. Decd. Ranchodbhai Pujabhai Padhiyar and others, passed in Second Appeal No.168 of 2018, this Court has held as under:-

“55. The case of the plaintiffs is plain and simple. They came before the Court with their suit based on the registered agreement of sale. In the registered agreement of sale, time has not been made the essence of the contract. To put it in other words, no time period has been fixed. The cause of action, which has been pleaded in the suit, is also plain and simple. At the cost of repetition, I may reproduce the averments made in the plaint as regards the cause of action, which reads thus:

"9. Cause of action to file the Suit.

Since 2.6.1999 i.e. the date on which the defendants got prepared the banakhat for the suit property and thereafter on 30.03.1999 when the Urban Land Ceiling Act got repealed and thereafter on 1.1.2003 and thereafter, from time to time they were informed and ultimately on 9.2.2003 they were informed, but the defendants failed to discharge their liability to execute the sale deed, therefore the cause has arisen for filing the present suit."

56. In para 7 of the plaint, it is specifically averred that the defendants Nos.1 to 5, in collusion with the defendant No.6, facilitated the defendant No.6 in obtaining a decree in his favour on the strength of the subsequent agreement of sale of the year 1994. This, according to the plaintiffs, was done only with a view to defeat their rights under the registered agreement of sale of the year 1990. The plaintiffs are very clear in their pleadings and have specifically averred that the defendants Nos.1 to 5 had agreed to execute the sale deed on 9th February 2003, but, on that date, they declined saying that it was not possible for them now to execute the sale deed, as the defendant No.6 had already obtained a decree in his favour. It cannot be said that there is a failure to disclose a cause of action. The ground for rejection of plaint is failure to disclose a cause of action and not there is no cause of action for the suit. As stated above, it is not competent for the Court to go into the correctness or otherwise of all the allegations constituting the cause of action. The correctness or otherwise of the allegations constituting the cause of action is beyond the purview of Order VII Rule 11(a) of the C.P.C. However, to find out whether the plaint discloses cause of action or not, the Court has to consider the allegations made in the plaint intelligently and meaningfully and need not be influenced by ingenious and clever drafting creating illusion of the cause of action. While considering the question whether the plaint discloses any cause of action or not, the Court has to find out from the allegations made in the plaint itself and not beyond it as to whether a bogus, wholly vexatious or frivolous litigation has been initiated by the plaintiff or that the claim made by the plaintiff is a legally recognisable claim.

57. In my opinion, the plaintiffs' right to sue is clearly disclosed, and in such circumstances, the Court ought not to have rejected the plaint. I find it difficult to accept the submission of Mr. Desai as regards the frivolity in the litigation and the abuse of the process of law. Ultimately, it would all depend upon the individual facts of each case.

58. In the result, the appeal is allowed. The impugned judgment and decree of the Trial Court is quashed and set aside. The judgment and order passed by the lower Appellate Court is also quashed and set aside. The Special Civil Suit No.308 of 2003 is revived and placed back before the Trial Court for disposal in accordance with law. I clarify that I have otherwise not expressed any opinion on the merits of the suit. All issues which may arise during the course of the trial shall be decided uninfluenced by any of the observations made by this Court. Any observations touching the merits of the case are relevant only for the purpose of deciding the issue as regards the rejection of the plaint and shall not be construed in any manner as an expression of the final opinion in the main matter.”

7.7 In the decision of Hon’ble Apex Court in case of H.S. Deekshit and another vs. M/s. Metropoli Overseas Limited and others passed in Special Leave Petition (c) 2177 of 2022, the Hon’ble Apex Court has observed as under:-

“Leave granted.

The challenge in the present appeal is to an order passed by the High Court of Karnataka at Bengaluru on 14.09.2021, whereby the revision petition filed by the defendant No.3 was allowed and plaint rejected in terms of Order 7 Rule 11(a) and (b) of the Code of Civil Procedure, 1908 (for short “the Code”).

The plaintiffs have pleaded as under:

“11. The plaintiffs further submit that as already stated above after the enquiry by the plaintiffs with the defendant no 1 and 2 have denied the very execution of the alleged execution of the agreement to sell dated 3/2/1995 registered in the office of the sub-registrar at Nelamangala as document no 2282/1994 and the copy of the same is now obtained on 18/6/20 and produced as Document no 17 for kind perusal of this Hon’ble court. That after the perusal of the same revealed the facts that the signatures available on the same are not that of the defendants and the same is forged one. It is important to note that the there is no thumb impression of the defendant no 1 and 2 on the registered agreement which is mandatory one. This shows that the alleged agreement is concocted one with the active connivances of the subregistrar at Nelamangala. Likewise, the plaintiffs have also obtained the copy of registered copy of the registered GPA alleged to have been executed by the defendants no 1 and 2 in respect of the suit property. It appears that even the GPA is also the fabricated by the defendant no 3 with the active help of the villagers who are inimically disposed to the plaintiff’s family with the intention to snatch the valuable suit property for wrongful gain. The same was also registered in the office of the sub-registrar at Nelamangala as document no 102/1995 dated 15/2/1995. The copy of the same is produced herewith for kind perusal of this Hon’ble court and shown as document no 18.”

It is further pleaded that the sale deeds were executed by Pawan Kumar Dalmia on the basis of alleged fabricated General Power of Attorney. Such suit was filed in the year 2020 after a suit for the perpetual injunction was filed by defendant No. 3.

It is well-settled that while considering an application under Order 7 Rule 11 of the Code, the averments in the plaint alone are to be examined and no other extraneous factor can be taken into consideration. On the basis of averments made by the plaintiffs in the suit as mentioned above, we find that it is disputed question of fact as to whether the Agreement to Sell, the Power of Attorney and the Sale Deeds are forged and fabricated documents. Such questions are required to be decided on the basis of evidence to be led by the parties. We do find that the forgery pleaded cannot be a ground for rejection of the plaint.

In view of the said fact, the order passed by the High Court is set aside. The suit stands restored to its original number. The appeal is accordingly disposed of.

In the said suit, it shall be open to the parties to raise all questions of law and facts. The suit be decided expeditiously in accordance with law.”

8. On the other hand learned advocate for the respondents submitted that the notice in the daily newspaper dated 28.10.2016 came to be published by the appellants, however, after issuance of the aforesaid notice, the suit came to be filed after almost 6 years of the said notice and therefore, the suit is time barred.

8.1. Learned advocate for the respondents further submitted that the averments with regard to the aspect of fraud and date of knowledge are general in nature, vague and the same is without documentary evidence. It is further submitted that in support of the said allegations no complaints are filed till date nor any cogent documentary evidence is produced on record.

8.2 He further submitted that all sale deeds were registered before the office of sub-registrar and hence, registered transactions were well within public domain and therefore, plaintiff is thereby estopped from taking plea that he had no knowledge about the transaction more particularly when the plaintiff herself has issued public notice.

8.3 He further submitted that both the courts below have rightly and its true spirit have dealt with the aspect and passed the order. He submitted that therefore, no interference is required to be made and the present second appeal may be dismissed.

9. Learned advocate for the respondents has relied upon the following decisions of this Court and Hon’ble Apex Court.

9.1 In the decision of Hon’ble Apex Court in case of C.S. Ramaswamy vs. Nanjammal and others reported in 2022 LawSuit (SC) 1178, the Hon’ble Apex Court has held as under:-

“7.8 Even the averments and allegations in the plaint with respect to fraud are not supported by any further averments and allegations how the fraud has been | committed/played. Mere stating in the plaint that a fraud has been played is not enough and_ the | allegations of fraud must be specifically averred in the plaint, otherwise merely by using the word “fraud”, the plaintiffs would try to get the suits within the limitation, which otherwise may be barred by limitation. Therefore, even if the submission on behalf of the respondents - original plaintiffs that only the averments and allegations in the plaints are required to be considered at the time of deciding the application under Order VII Rule 11 CPC is accepted, in that case also by such vague allegations with respect to the date of knowledge, the Plaintiffs cannot be permitted to challenge the documents after a period of 10 years. By such a clever drafting and using the word “fraud”, the plaintiffs have tried to bring the suits within the period fo limitation invoking Section 17 of the limitation Act. The plaintiffs cannot be permitted to bring the suits within the period of limitation by clever drafting, which otherwise is barred by limitation.”

9.2 In the decision of Hon’ble Apex Court in case of Dahiben vs. Arvindbhai Kalyanji Bhansai reported in (2020) SCC Online 563, the Hon’ble Apex Court has held as under:-

“12

The underlying object of Order VII Rule 11 (a) is that if in a suit, no cause of action is disclosed, or the suit is barred by limitation under Rule 11(d), the Court would not permit the plaintiff to unnecessarily protract the proceedings in the suit. In such a case, it would be necessary to put an end to the sham litigation, so that further juridical time is not wasted.

12.8 If on a meaningful reading of the plaint, it ls found that the suit Is manifestly vexatious and without any merit, and does not disclose a right to sue, the court would be justified in exercising the power under Order VII Rule 11 CPC.

12.10 The provision of Order VII Rule 11 is mandatory in nature. It states that the plaint "shall" be rejected if any of the grounds specified in clause (a) to (e) are made out. If the Court finds that the plaint does not disclose a cause of action, or that the suit is barred by any law, the Court has no option, but to reject the plaint.

14........

In Khatri Hotels Pvt. Ltd. & Anr. v. Union of India & Anr. 2011 9 SCC 126 [LQ/SC/2011/1216] this Court held that the use of the word ‘first’ between the words ‘sue’ and ‘accrued’, would mean that if a suit is based on multiple causes of action, the period of limitation will begin to run from the date when the right to sue first accrues. That is, if there are successive violations of the right, it would not give rise to a fresh cause of action, and the suit will be liable to be dismissed, if it is beyond the period of limitation counted from the date when the right to sue first accrued.......

16. The Trial Court held that the period of limitation for filing the suit was 3 years from the date of execution of the Sale Deed dated 02.07.2009. The suit was filed on 15.12.2014. The cause of action as per the averments in the plaint had arisen when the Defendant No.1/Respondent No.1 had issued ‘false’ or ‘bogus’ cheques to the Plaintiffs in 2009. The suit for cancellation of the Sale Deed dated 02.07.2009 could have been filed by 2012, as per Articles 58 and 59 of the Limitation Act, 1963. The suit was however filed on 15.12.2014, which was barred by limitation.

17. The suit property was subsequently sold by Respondent No.1 to Respondent Nos. 2 and 3 by a registered Sale Deed dated 01.04.2013. Before purchasing the suit property, the Respondent Nos. 2 and 3 had issued a public notice on 14.08.2012. The Plaintiffs did not raise any objection to the same.

18. The Trial Court, on the basis of the settled position in law, held that the suit of the Plaintiffs was barred by limitation, and allowed the application under Order VII Rule 11(d) CPC.

19. Aggrieved by the Judgment dated 12.08.2016 passed by the Sr. Civil Judge, Surat, the Plaintiffs filed First Appeal No.2324/2016 before the High Court of Gujarat at Ahmedabad.

20. The Division Bench of the High Court took note of the fact that the Plaintiffs did not deny having executed the registered Sale Deed dated 02.07.2009 in favour of Respondent No.1. In the said Sale Deed, it was specifically admitted and acknowledged by the Plaintiffs that they had received the full sale consideration. The Sale Deed contained the complete particulars with respect to the payment of sale consideration by Respondent No. 1 through 36 cheques, the particulars of which were recorded therein. Since the execution of the Sale Deed was not disputed, and the conveyance was duly registered in the presence of the Plaintiffs before the Sub- Registrar, the Sale Deed could not be declared to be void, illegal, or ineffective. The suit property was subsequently sold by Respondent No. 1 in favour of Respondent Nos. 2 and 3 vide registered Sale Deed dated 01.04.2013 for a sale consideration of Rs. 2,01,00,000/-. Respondent Nos. 2 and 3 were bona fide purchasers for valuable consideration.

21. The present suit for cancellation of the Sale Deed was filed by the Plaintiffs after a period of over 5 years after the execution of the Sale Deed dated 02.07.2009, and 1 year after the execution of the Sale Deed dated 01.04.2013 by Respondent No.1. It was noted that prior to the institution of the suit on 15.12.2014, at no point of time did the Plaintiffs raise any grievance whatsoever, of not having received the full sale consideration mentioned in the Sale Deed dated 02.07.2009. It was for the first time that such an allegation was made after over 5 years from the date of execution of the Sale Deed dated 02.07.2009.

23. We have heard the learned Counsel for the parties, perused the plaint and documents filed therewith, as also the written submissions filed on behalf of the parties.

23.1 We will first briefly touch upon the law applicable for deciding an application under Order VII Rule 11 CPC, which reads as under:

“11. Rejection of plaint.– The plaint shall be rejected in the following cases:–

(a) where it does not disclose a cause of action;

(b) where the relief claimed in undervalued, and the plaintiff, on being required by the Court to correct the valuation within a time to be fixed by the Court, fails to do so;

(c) where the relief claimed is properly valued but the plaint is written upon paper insufficiently stamped, and the plaintiff, on being required by the Court to supply the requisite stamp-paper within a time to be fixed by the Court, fails to do so;

(d) where the suit appears from the statement in the plaint to be barred by any law;

(e) where it is not filed in duplicate;

(f) where the plaintiff fails to comply with the provisions of rule 9 Provided that the time fixed by the Court for the correction of the valuation or supplying of the requisite stamp-paper shall not be extended unless the Court, for reasons to be recorded, is satisfied that the plaintiff was prevent by any cause of exceptional nature for correction the valuation or supplying the requisite stamp-paper, as the case may be, within the time fixed by the Court and that refusal to extend such time would cause grave injustice to the plaintiff.” (emphasis supplied)

23.2 The remedy under Order VII Rule 11 is an independent and special remedy, wherein the Court is empowered to summarily dismiss a suit at the threshold, without proceeding to record evidence, and conducting a trial, on the basis of the evidence adduced, if it is satisfied that the action should be terminated on any of the grounds contained in this provision.

23.3 The underlying object of Order VII Rule 11 (a) is that if in a suit, no cause of action is disclosed, or the suit is barred by limitation under Rule 11 (d), the Court would not permit the plaintiff to unnecessarily protract the proceedings in the suit. In such a case, it would be necessary to put an end to the sham litigation, so that further judicial time is not wasted.

23.4 In Azhar Hussain v. Rajiv Gandhi1 this Court held that the whole purpose of conferment of powers under this provision is to ensure that a litigation which is meaningless, and bound to prove abortive, should not be permitted to waste judicial time of the court, in the following words:

“12. …The whole purpose of conferment of such power is to ensure that a litigation which is meaningless, and bound to prove abortive should not be permitted to occupy the time of the Court, and exercise the mind of the respondent. The sword of Damocles need not be kept hanging over his head unnecessarily without point or purpose. Even if an ordinary civil litigation, the Court readily exercises the power to reject a plaint, if it does not disclose any cause of action.”

23.5 The power conferred on the court to terminate a civil action is, however, a drastic one, and the conditions enumerated in Order VII Rule 11 are required to be strictly adhered to.

23.6 Under Order VII Rule 11, a duty is cast on the Court to determine whether the plaint discloses a cause of action by scrutinizing the averments in the plaint2, read in conjunction with the documents relied upon, or whether the suit is barred by any law.

23.7 Order VII Rule 14(1) provides for production of documents, on which the plaintiff places reliance in his suit, which reads as under :

“14. Production of document on which plaintiff sues or relies.– (1)Where a plaintiff sues upon a document or relies upon document in his possession or power in support of his claim, he shall enter such documents in a list, and shall produce it in Court when the plaint is presented by him and shall, at the same time deliver the document and a copy thereof, to be filed with the plaint.

(2)Where any such document is not in the possession or power of the plaintiff, he shall, wherever possible, state in whose possession or power it is.

(3)A document which ought to be produced in Court by the plaintiff when the plaint is presented, or to be entered in the list to be added or annexed to the plaint but is not produced or entered accordingly, shall not, without the leave of the Court, be received in evidence on his behalf at the hearing of the suit.

(4)Nothing in this rule shall apply to document produced for the cross examination of the plaintiff's witnesses, or, handed over to a witness merely to refresh his memory.” (emphasis supplied)

23.8 Having regard to Order VII Rule 14 CPC, the documents filed alongwith the plaint, are required to be taken into consideration for deciding the application under Order VII Rule 11 (a). When a document referred to in the plaint, forms the basis of the plaint, it should be treated as a part of the plaint.

23.9 In exercise of power under this provision, the Court would determine if the assertions made in the plaint are contrary to statutory law, or judicial dicta, for deciding whether a case for rejecting the plaint at the threshold is made out.

23.10 At this stage, the pleas taken by the defendant in the written statement and application for rejection of the plaint on the merits, would be irrelevant, and cannot be adverted to, or taken into consideration.

23.11 The test for exercising the power under Order VII Rule 11 is that if the averments made in the plaint are taken in entirety, in conjunction with the documents relied upon, would the same result in a decree being passed. This test was laid down in Liverpool & London S.P. & I Assn. Ltd. v. M.V.Sea Success which reads as :

“139. Whether a plaint discloses a cause of action or not is essentially a question of fact. But whether it does or does not must be found out from reading the plaint itself. For the said purpose, the averments made in the plaint in their entirety must be held to be correct. The test is as to whether if the averments made in the plaint are taken to be correct in their entirety, a decree would be passed.”

23.12 In Hardesh Ores (P.) Ltd. v. Hede & Co. the Court further held that it is not permissible to cull out a sentence or a passage, and to read it in isolation. It is the substance, and not merely the form, which has to be looked into. The plaint has to be construed as it stands, without addition or subtraction of words. If the allegations in the plaint prima facie show a cause of action, the court cannot embark upon an enquiry whether the allegations are true in fact. D. Ramachandran v. R.V. Janakiraman.

23.13 If on a meaningful reading of the plaint, it is found that the suit is manifestly vexatious and without any merit, and does not disclose a right to sue, the court would be justified in exercising the power under Order VII Rule 11 CPC.

23.14 The power under Order VII Rule 11 CPC may be exercised by the Court at any stage of the suit, either before registering the plaint, or after issuing summons to the defendant, or before conclusion of the trial, as held by this Court in the judgment of Saleem Bhai v. State of Maharashtra. The plea that once issues are framed, the matter must necessarily go to trial was repelled by this Court in Azhar Hussain case.

23.15 The provision of Order VII Rule 11 is mandatory in nature. It states that the plaint “shall” be rejected if any of the grounds specified in clause (a) to (e) are made out. If the Court finds that the plaint does not disclose a cause of action, or that the suit is barred by any law, the Court has no option, but to reject the plaint.

25. The Limitation Act, 1963 prescribes a time-limit for the institution of all suits, appeals, and applications. Section 2(j) defines the expression “period of limitation” to mean the period of limitation prescribed in the Schedule for suits, appeals or applications. Section 3 lays down that every suit instituted after the prescribed period, shall be dismissed even though limitation may not have been set up as a defence. If a suit is not covered by any specific article, then it would fall within the residuary article.

26. Articles 58 and 59 of the Schedule to the 1963 Act, prescribe the period of limitation for filing a suit where a declaration is sought, or cancellation of an instrument, or rescission of a contract, which reads as under :

Description of suit	Period of limitation	Time from which period begins to run
58. To obtain any other declaration.	Three years	When the right to sue first accrues.
59. To cancel or set aside an instrument or decree or for the rescission of a contract	Three years	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

The period of limitation prescribed under Articles 58 and 59 of the 1963 Act is three years, which commences from the date when the right to sue first accrues.

29.9 In view of the law laid down by this Court, even if the averments of the Plaintiffs are taken to be true, that the entire sale consideration had not in fact been paid, it could not be a ground for cancellation of the Sale Deed. The Plaintiffs may have other remedies in law for recovery of the balance consideration, but could not be granted the relief of cancellation of the registered Sale Deed. We find that the suit filed by the Plaintiffs is vexatious, meritless, and does not disclose a right to sue. The plaint is liable to be rejected under Order VII Rule 11 (a).

29.10 The Plaintiffs have averred in the plaint that the period of limitation commenced on 21.11.2014, when they obtained a copy of the index of the Sale Deed dated 02.07.2009, and discovered the alleged fraud committed by Defendant No.1. The relevant extract from the plaint in this regard is set out hereinbelow :–

“(7) … Not only that but also, on obtaining the copy of the index of the sale deed of the acts committed by the Opponent No.1, 4, 5 and on obtaining the certified copy of the sale deed, we the plaintiffs could come to know on 21- 11-2014 that, the Opponent No.1 had in collusion with Opponent No.4, 5 mentioned the false cheques stated below in the so called sale deed with intention to commit fraud and no any consents of we the plaintiffs have also been obtained in that regard. The said cheques have not been received to we the plaintiffs or no any amounts of the said cheques have been credited in accounts of we the plaintiffs. Thus, the cheques which have been mentioned in the agreement caused to have been executed by the Opponent No.1, the false cheques have been mentioned of the said amounts. Not only that but also, the agricultural land under the suit had been sold by the Opponent No.1 to the Opponent No.2 Dillipbhai Gordhanbhai Sonani and the Opponent No.3, Laljibhai Gordhanbhai Sonani on 1-4-2013 for Rs.2,01,00,000/- as if the said sale deed was having clear title deeds. On taking out the copy of the said sale deed with seal and signature on 21-11-2014, it could come to the knowledge of we the plaintiffs. We the plaintiffs have not done any signature or witness on the said agreement. The said agreement is not binding to we the plaintiffs. Since the said agreement is since null, void and invalid as well as illegal, therefore, no any Court fee stamp duty is required to be paid by we the plaintiff on the said agreement and for that we the plaintiffs rely upon the judgment of the Supreme Court Suhrid Singh v. Randhir Singh…….” (emphasis supplied)

29.11 The plea taken in the plaint that they learnt of the alleged fraud in 2014, on receipt of the index of the Sale Deed, is wholly misconceived, since the receipt of the index would not constitute the cause of action for filing the suit.

29.12 On a reading of the plaint, it is clear that the cause of action arose on the non-payment of the bulk of the sale consideration, which event occurred in the year 2009. The plea taken by the Plaintiffs is to create an illusory cause of action, so as to overcome the period of limitation. The plea raised is rejected as being meritless and devoid of any truth.

29.13 The conduct of the Plaintiffs in not taking recourse to legal action for over a period of 5 and ½ years from the execution of the Sale Deed in 2009, for payment of the balance sale consideration, also reflects that the institution of the present suit is an after-thought. The Plaintiffs apparently filed the suit after the property was further sold by Respondent No.1 to Respondent Nos. 2 and 3, to cast a doubt on the title of Respondent No.1 to the suit property.

29.18 The delay of over 5 and ½ years after the alleged cause of action arose in 2009, shows that the suit was clearly barred by limitation as per Article 59 of the Limitation Act, 1963. The suit was instituted on 15.12.2014, even though the alleged cause of action arose in 2009, when the last cheque was delivered to the Plaintiffs. The Plaintiffs have failed to discharge the onus of proof that the suit was filed within the period of limitation. The plaint is therefore, liable to be rejected under Order VII Rule 11 (d) of CPC.

31. In view of the aforesaid discussion, the present civil appeal is dismissed with costs of Rs.1,00,000 payable by the appellant to Respondents 2 and 3, within a period of twelve weeks from the date of this judgment. Pending applications, if any, are accordingly disposed of.”

9.3 In the decision of this Court in case of Poonam Shanabhai Vanand vs. Hasmukhbhai Bachubhai Prasana reported in 2017 (3) GLR 2511, the headnote reads as under:-

“Code of Civil Procedure, 1908 – Order 7 Rule 11- Limitation Act, 1963 – Art 59- Plaintiff filed suit in year 2001 for cancellation of sale deed registered in the year 2001-– plaint rejected – Held, suit is time barred, Courts below rightly rejected, plaint registration of the scale deed is deemed notice – Orders of Courts below upheld – Appeal dismissed.”

9.4 In the decision of Hon’ble Apex Court in case of Rajendra Bajoria and others vs. Hemant Kumar Jalan and others reported in 2021 AIR (SC) 4594, the Hon’ble Apex Court has held as as under:-

“14. We may gainfully refer to the observations of this Court in the case of T. Arivandandam v. T.V. Satyapal and Another (supra):

“5. We have not the slightest hesitation in condemning the petitioner for the gross abuse of the process of the court repeatedly and unrepentently resorted to. From the statement of the facts found in the judgment of the High Court, it is perfectly plain that the suit now pending before the First Munsif's Court, Bangalore, is a flagrant misuse of the mercies of the law in receiving plaints. The learned Munsif must remember that if on a meaningful — not formal — reading of the plaint it is manifestly vexatious, and meritless, in the sense of not disclosing a clear right to sue, he should exercise his power under Order 7, Rule 11 CPC taking care to see that the ground mentioned therein is fulfilled. And, if clever drafting has created the illusion of a cause of action, nip it in the bud at the first hearing by examining the party searchingly under Order 10, CPC. An activist Judge is the answer to irresponsible law suits. The trial courts would insist imperatively on examining the party at the first hearing so that bogus litigation can be shot down at the earliest stage. The Penal Code is also resourceful enough to meet such men, (Cr. XI) and must be triggered against them. In this case, the learned Judge to his cost realised what George Bernard Shaw remarked on the assassination of Mahatma Gandhi:

“It is dangerous to be too good.” [emphasis supplied]

15. It could thus be seen that this Court has held that reading of the averments made in the plaint should not only be formal but also meaningful. It has been held that if clever drafting has created the illusion of a cause of action, and a meaningful reading thereof would show that the pleadings are manifestly vexatious and meritless, in the sense of not disclosing a clear right to sue, then the court should exercise its power under Order VII Rule 11 of CPC. It has been held that such a suit has to be nipped in the bud at the first hearing itself.”

9.5 In the decision of Hon’ble Apex Court in case of Azhar Hussain Vs. Rajiv Gandhi reported in 1986 Supp 1 SCC 315, the Hon’ble Apex Court has held as under:-

“12…….the whole purpose of confernment of such powers is to ensure that a litigation which is meaningless and bound to prove abortive should not be permitted to occupy the time of the court and exercise the mind of the respondent. The sword of Damocle need not be kept hanging over his head unnecessarily without point or purpose. Even in an ordinary Civil litigation the Court readily exercises the power to reject a plaint if it does not disclose any cause of action.”

9.6 In the decision of Hon’ble Apex Court in case of Popat & Kotecha Propery vs. State Bank of India reported in 2005 (7) SCC 510, [LQ/SC/2005/854] the Hon’ble Apex Court has observed as under:-

“Real object of Order 7 Rule 11 of the Code is to keep out of courts irresponsible law suits. The word “shall” used in the said provision clearly casts a duty on the court to perform its obligations in rejecting the plaint, when the same hit by any of the infirmities provided in the four clauses of the rule 11, even without intervention of the defendant. That it is also held that powers under order 7 rule 11 can be exercised at any stage of the suit, either upon application of defendant or without the intervention of defendant, but what parens patriae are giving the caution is that, courts of law shall not mechanically try the suits against the defendants without satisfying itself from the fact mentioned in the plaint or documents produced with it that suit is within the period of limitation and discloses the cause of action.

9.7 In the decision of Ho’ble Apex Court in case of Dilboo (Smt)(Dead) By Lrs. And others vs. Dhanraji (Smt) (Dead) and others reported in (2000) 7 SCC 702 [LQ/SC/2000/1355] the Hon’ble Apex Court has held as under:-

“20. This Suit was governed by the Limitation Act of 1948. Arts. 134 and 148 read as follows:

Description	Description	Time from which period begins to run
134. To recover possession of immovable property conveyed or bequeathed in trust or mortgaged and afterwards transferred by the trustee or mortgagee for a valuable consideration.	Twelve years	When the transfer becomes known to the plaintif
148. Against a mortgagee to redeem or to recover possession of immovable property mortgaged.	Sixty years	When the right to redeem or to recover possession accrues.

...The period of 12 years has to run from the date of knowledge by the plaintiff of such transfer. It is always for the party who files the suit to show that the suit is withitn time..... Whenver a document is registered the date of registration becomes the date of deemed knowledge. In other cases where a fact could be discovered by due diligence then deemed knowledge would be attributed to the plaintiff because a party cannot be allowed to extend the period of limitation by merely claiming that he has no knowledge.

9.8 In the decision of Ho’ble Apex Court in case of K. AKbar Ali vs. K. Umar Khan and others in Special Leave Petition No.31844 of 2018 Hon’ble Apex Court has held as under:-

“5. It is well settled that while considering an application under Order VII Rule 11 of the CPC, the question before the Court is whether the plaint discloses any cause of action or whether the suit is barred by any law, on the face of the averments contained in the plaint itself. While considering an application under Order VII Rule 11 of the CPC the Court is not to look into the strength or weakness of the case of the plaintiff or the defence raised by the defendant.

7. In any case, an application under Order VII Rule 11 of the CPC for rejection of the plaint requires a meaningful reading of the plaint as a whole. As held by this Court in ITC v. Debts Recovery Appellate Tribunal reported in AIR 1998 SC 634, clever drafting creating illusions of cause of action are not permitted in law and a clear right to sue should be shown in the plaint. Similarly the Court must see that the bar in law of the suit is not camouflaged by devious and clever drafting of the plaint. Moreover, the provisions of Order VII Rue 11 are not exhaustive and the Court has the inherent power to see that frivolous or vexatious litigations are not allowed to consume the time of the Court.

9.9 In the decision of this Court in case of Zoharabibi D/o. Abdulrahim Banglee and others vs. Thakorbhai Maganbhai Patel and others in First Appeal No.791 of 2014 this Court has held as under:-

“2.02. On receipt of the summons, original defendant No.1 submitted application Ex.17 to reject the plaint under Order 7 Rule 11(d) of the Code of Civil Procedure inter-alia contending that the suit is barred by law of limitation. It was also requested to frame preliminary issue with respect to jurisdiction.

2.04. Feeling aggrieved by and dissatisfied with the impugned order passed by the learned trial court in rejecting the plaint under Order 7 Rule 11(d) of the Code of Civil Procedure on the ground that the suit is barred by law of limitation, appellants herein - original plaintiffs have preferred the present First Appeal.

4.02...........In the case of Dilboo (Smt)(Dead) By Lrs & Anr vs. Dhanraji (Smt)(Dead) and Others reported in (2000)7 SCC 702 [LQ/SC/2000/1355] , the Hon'ble Supreme Court has observed and held that whenever the document is registered, the date of registration becomes the date of deemed knowledge and in other cases where a fact could be discovered by due diligence then deemed knowledge would be attributed to the plaintiff because a party cannot be allowed to extend the period of limitation by merely claiming that he had no knowledge. In the said decision, the Hon'ble Supreme Court has also observed and held that plaint can be rejected in exercise of powers under Order 7 Rule 11(d) of the Code of Civil Procedure if it is found that even accepting all the averments made in the suit, it is found that the suit is barred by law of limitation. Relying upon the aforesaid decision of the Hon'ble Supreme Court, this Court in the case of Becharbhai Zaverbhai Patel and another, reported in 2013 (1) GLR 398 has held that considering the averments in the plaint and supporting documents produced along with the plaint, if the suit is clearly C/FA/791/2014 ORDER barred by law of limitation, plaint is required to be rejected under Order 7 Rule 11(d) of the Code of Civil Procedure. It is further observed and held that in case of suit challenging the registered document, date of registration becomes date of deemed knowledge and by clever drafting and vague averments, the suit which is otherwise barred by law of limitation cannot be brought within the period of limitation.

4.03. It is also required to be noted that even in the plaint while making averments with respect to cause of action it is mentioned that the plaintiffs came to know about the sale deed by the original defendant No.1 in favour of defendant Nos.11 to 17 on 23/3/2010. However, the said averments are too vague and as such it can be said to be clever drafting to bring the suit within the period of limitation.

4.04.....Even otherwise, it is required to be noted and even according to the plaintiffs, they came to know about the sale deed on 23/3/2010, however, they instituted the suit for cancellation of the sale deed after a period of one year two months thereafter. Under the circumstances, the suit is clearly barred by law of limitation and no error has been committed by the learned trial court in rejecting the plaint under Order 7 Rule 11(d) of the Code of Civil Procedure on the ground that the suit is barred by law of limitation.”

9.10 In the decision in case of Rajpal Singh vs. Saroj reported in 2022 SC Online 638, Hon’ble Apex Court has held as under:-

“26. Therefore, the subsequent present suit filed by the original plaintiff in Civil Suit No. 419/2007 can be said to be clearly barred by the law of limitation. The suit seeking cancellation of the sale deed was required to be filed within a period of three years from the date of the knowledge of the sale deed. Therefore, when the name of the appellant herein - original defendant No.1 was mutated in the revenue records in the year 1996 on the basis of the registered Sale Deed dated 19.04.1996 and when he was found to be in possession and cultivating the land since then, the suit was required to be filed by the original plaintiff within a period of three years from 1996. The submission on behalf of the original plaintiff (now represented through her heirs) that the prayer in the suit was also for recovery of the possession and therefore the said suit was filed within the period of twelve years and therefore the suit has been filed within the period of limitation, cannot be accepted. Relief for possession is a consequential prayer and the substantive prayer was of cancellation of the Sale Deed dated 19.04.1996 and therefore, the limitation period is required to be considered with respect to the substantive relief claimed and not the consequential relief. When a composite suit is filed for cancellation of the sale deed as well as for recovery of the possession, the limitation period is required to be considered with respect to the substantive relief of cancellation of the sale deed, which would be three years from the date of the knowledge of the sale deed sought to be cancelled. Therefore, the suit, which was filed by the original plaintiff for cancellation of the sale deed, can be said to be a substantive therefore the same was clearly barred by limitation. Hence, the learned Trial Court ought to have dismissed the suit on the ground that the suit was barred by limitation. As such the learned First Appellate Court was justified and right in setting aside the judgment and decree passed by the learned Trial Court and consequently dismissing the suit. The High Court has committed a grave error in quashing and setting aside a well-reasoned and a detailed judgment and order passed by the First Appellate Court dismissing the suit and consequently restoring the judgment and decree passed by the Trial Court.

9.11 In the decision in case of Raghwendra Sharan Singh v. Ram Prasanna Singh reported in (2020) 16 SCC 601, [LQ/SC/2019/494] Hon’ble Apex Court has held as under:-

6. Heard the learned counsel appearing on behalf of the respective parties at length. We have perused the impugned judgment and order of the High Court as well as the order of the trial Court, dismissing the application under Order 7 Rule 11 of the CPC and refusing to reject the plaint in exercise of powers under Order 7 Rule 11 of the CPC. We have also considered the averments in the plaint.

6.1 At the outset, it is required to be noted that the plaintiff has instituted the suit against the defendant for a declaration that the defendant has acquired no title and possession on the basis of the deed of gift dated 06.03.1981 and that the plaintiff has got title and possession in the said property. In the suit, the plaintiff has prayed for the following reliefs:

“A. That on adjudication of the facts stated above, it be declared that the defendant acquired no title and possession on the basis of the said showy deed of gift dated 06.03.1981 and the plaintiff has got title and possession in the said property.

B. That it be declared that the said showy Deed of Gift dated 06.03.1981 is not binding upon the plaintiff.

C. That the possession of the plaintiff be continued over the suitproperty and in case if he is found out of possession, a decree for recovery of possession be passed in favour of the plaintiff.

D. That the defendant be restrained by an order of adinterim injunction from transferring or encumbering or interfering with the possession of the plaintiff over the suit land, during the pendency of the suit.

E. That the cost of the suit be awarded to the plaintiff and against the defendant.

F. Any other relief or reliefs which deems fit and proper, be awarded to the plaintiff and against the defendant.”

6.2 Considering the averments in the plaint, it can be seen that, as such, the plaintiff has specifically admitted that the plaintiff and his brother executed the gift deed on 06.03.1981. It is admitted that the gift deed is a registered gift deed. It also emerges from the plaint that till 2003, neither the plaintiff nor his brother (during his lifetime) challenged the gift deed dated 06.03.1981 nor, at any point of time, claimed that the gift deed dated 06.03.1981 was a showy deed of gift. In fact, it is the defendant appellant herein who instituted the suit in the year 2001 against his brothers to which even the plaintiff was a party as defendant No. 10 and that was a partition suit filed by the appellant herein original defendant. It appears that the summon and the copy of the plaint – T.S. (Partition) Suit No. 203 of 2001 – was served upon the plaintiff in the year 2001 itself. Still, the plaintiff averred in the plaint that it came to the knowledge of the plaintiff with respect to the gift deed on 10.04.2003. Thus, it is born out from the averments in the plaint that, till 2003, the plaintiff never disputed the gift deed and/or never claimed that the gift deed dated 06.03.1981 was a showy deed of gift. With the aforesaid facts and circumstances, the application submitted by the appellant original defendant to reject the plaint in exercise of powers under Order 7 Rule 11 of the CPC is required to be considered.

6.3 While considering the scope and ambit of the application under Order 7 Rule 11 of the CPC, few decisions of this Court on Order 7 Rule 11 of the CPC are required to be referred to and considered.

6.4 In the case of T. Arivandandam (supra), while considering the very same provision i.e. Order 7 Rule 11 of the CPC and the decree of the trial Court in considering such application, this Court in para 5 has observed and held as under:

“5. We have not the slightest hesitation in condemning the petitioner for the gross abuse of the process of the court repeatedly and unrepentently resorted to. From the statement of the facts found in the judgment of the High Court, it is perfectly plain that the suit now pending before the First Munsif's Court, Bangalore, is a flagrant misuse of the mercies of the law in receiving plaints. The learned Munsif must remember that if on a meaningful — not formal — reading of the plaint it is manifestly vexatious, and meritless, in the sense of not disclosing a clear right to sue, he should exercise his power under Order 7, Rule 11 CPC taking care to see that the ground mentioned therein is fulfilled. And, if clever drafting has created the illusion of a cause of action, nip it in the bud at the first hearing by examining the party searchingly under Order 10, CPC. An activist Judge is the answer to irresponsible law suits.....”

6.5 In the case of Church of Christ Charitable Trust and Educational Charitable Society (supra), this Court in paras 13 has observed and held as under:

“13. While scrutinizing the plaint averments, it is the bounden duty of the trial Court to ascertain the materials for cause of action. The cause of action is a bundle of facts which taken with the law applicable to them gives the Plaintiff the right to relief against the Defendant. Every fact which is necessary for the Plaintiff to prove to enable him to get a decree should be set out in clear terms. It is worthwhile to find out the meaning of the words "cause of action". A cause of action must include some act done by the Defendant since in the absence of such an act no cause of action can possibly accrue.”

6.6 In A.B.C. Laminart Pvt. Ltd. v. A.P. Agencies, Salem (supra), this Court explained the meaning of “cause of action” as follows:

“12. A cause of action means every fact, which if traversed, it would be necessary for the plaintiff to prove in order to support his right to a judgment of the court. In other words, it is a bundle of facts which taken with the law applicable to them gives the plaintiff a right to relief against the defendant. It must include some act done by the defendant since in the absence of such an act no cause of action can possibly accrue. It is not limited to the actual infringement of the right sued on but includes all the material facts on which it is founded. It does not comprise evidence necessary to prove such facts, but every fact necessary for the plaintiff to prove to enable him to obtain a decree. Everything which if not proved would give the defendant a right to immediate judgment must be part of the cause of action. But it has no relation whatever to the defence which may be set up by the defendant nor does it depend upon the character of the relief prayed for by the plaintiff.”

6.7 In the case of Sopan Sukhdeo Sable (supra) in paras 11 and 12, this Court has observed as under:

“11. In I.T.C. Ltd. v. Debts Recovery Appellate Tribunal [(1998) 2 SCC 70] [LQ/SC/1997/1730] it was held that the basic question to be decided while dealing with an application filed under Order 7 Rule 11 of the Code is whether a real cause of action has been set out in the plaint or something purely illusory has been stated with a view to get out of Order 7 Rule 11 of the Code.

12. The trial court must remember that if on a meaningful and not formal reading of the plaint it is manifestly vexatious and meritless in the sense of not disclosing a clear right to sue, it should exercise the power under Order 7 Rule 11 of the Code taking care to see that the ground mentioned therein is fulfilled. If clever drafting has created the illusion of a cause of action, it has to be nipped in the bud at the first hearing by examining the party searchingly under Order 10 of the Code. (See T. Arivandandam v. T.V.Satyapal”

6.8 In the case of Madanuri Sri Rama Chandra Murthy (supra), this Court has observed and held as under:

“7. The plaint can be rejected under Order 7 Rule 11 if conditions enumerated in the said provision are fulfilled. It is needless to observe that the power under Order 7 Rule 11 CPC can be exercised by the Court at any stage of the suit. The relevant facts which need to be looked into for deciding the application are the averments of the plaint only. If on an entire and meaningful reading of the plaint, it is found that the suit is manifestly vexatious and meritless in the sense of not disclosing any right to sue, the court should exercise power under Order 7 Rule 11 CPC. Since the power conferred on the Court to terminate civil action at the threshold is drastic, the conditions enumerated under Order 7 Rule 11 CPC to the exercise of power of rejection of plaint have to be strictly adhered to. The averments of the plaint have to be read as a whole to find out whether the averments disclose a cause of action or whether the suit is barred by any law. It is needless to observe that the question as to whether the suit is barred by any law, would always depend upon the facts and circumstances of each case. The averments in the written statement as well as the contentions of the defendant are wholly immaterial while considering the prayer of the defendant for rejection of the plaint. Even when the allegations made in the plaint are taken to be correct as a whole on their face value, if they show that the suit is barred by any law, or do not disclose cause of action, the application for rejection of plaint can be entertained and the power under Order 7 Rule 11 CPC can be exercised. If clever drafting of the plaint has created the illusion of a cause of action, the court will nip it in the bud at the earliest so that bogus litigation will end at the earlier stage.”

6.9 In the case of Ram Singh (supra), this Court has observed and held that when the suit is barred by any law, the plaintiff cannot be allowed to circumvent that provision by means of clever drafting so as to avoid mention of those circumstances, by which the suit is barred by law of limitation.

7. Applying the law laid down by this Court in the aforesaid decisions on exercise of powers under Order 7 Rule 11 of the CPC to the facts of the case in hand and the averments in the plaint, we are of the opinion that both the Courts below have materially erred in not rejecting the plaint in exercise of powers under Order 7 Rule 11 of the CPC. It is required to be noted that it is not in dispute that the gift deed was executed by the original plaintiff himself along with his brother. The deed of gift was a registered gift deed. The execution of the gift deed is not disputed by the plaintiff. It is the case of the plaintiff that the gift deed was a showy deed of gift and therefore the same is not binding on him. However, it is required to be noted that for approximately 22 years, neither the plaintiff nor his brother (who died on 15.12.2002) claimed at any point of time that the gift deed was showy deed of gift. One of the executants of the gift deed – brother of the plaintiff during his lifetime never claimed that the gift deed was a showy deed of gift. It was the appellant herein original defendant who filed the suit in the year 2001 for partition and the said suit was filed against his brothers to which the plaintiff was joined as defendant No. 10. It appears that the summon of the suit filed by the defendant being T.S. (Partition) Suit No. 203 of 2001 was served upon the defendant No.10 plaintiff herein in the year 2001 itself. Despite the same, he instituted the present suit in the year 2003. Even from the averments in the plaint, it appears that during these 22 years i.e. the period from 1981 till 2001/2003, the suit property was mortgaged by the appellant hereinoriginal defendant and the mortgage deed was executed by the defendant. Therefore, considering the averments in the plaint and the bundle of facts stated in the plaint, we are of the opinion that by clever drafting the plaintiff has tried to bring the suit within the period of limitation which, otherwise, is barred by law of limitation. Therefore, considering the decisions of this Court in the case of T. Arivandandam (supra) and others, as stated above, and as the suit is clearly barred by law of limitation, the plaint is required to be rejected in exercise of powers under Order 7 Rule 11 of the CPC.”

9.12 In the decision in case of N.V. Srinivasa Murthy v. Mariyamma reported in (2005) SCC 548, Hon’ble Apex Court has held as under:-

12. The averments in paragraph 12 of the plaint concerning the mutation proceedings before the revenue authorities did not furnish any fresh cause of action for the suit and they appear to have been made as a camouflage to get over the bar of limitation. The dispute of mutation in the revenue court between the parties arose only on the basis of registered sale deed dated 5.5.1953. The orders passed by Tehsildar/Assistant Commissioner did not furnish any independent or fresh cause of action to seek declaration of the sale deed of 5.5.53 to be merely a loan transaction. The foundation of suit does not seem to be the adverse orders passed by revenue courts or authorities in mutation proceedings. The foundation of suit is clearly the registered sale deed of 1953 which is alleged to be a loan transaction and the alleged oral agreement of re-conveyance of the property on return of borrowed amount.

17. This is a fit case not only for rejecting the plaint but imposing exemplary costs on the appellant on the observations of this Court in the case of T. Arvindam vs.T.V.Satyapal [1977 (4) SCC 467] [LQ/SC/1977/296] :-

"The trial court must remember that if on a meaningful no formal reading of the plaint it is manifestly vexatious and meritless in the sense of not disclosing a clear right to sue, it should exercise its power under Order VII, Rule 11 CPC taking care to see that the ground mentioned therein is fulfilled. If clever drafting has created the illusion of a cause of action, the court must nip it in the bud at the first hearing by examining the party searchingly under Order X, CPC. An activist judge is the answer to irresponsible law suits. The trial courts would insist imperatively on examining the party at the first hearing so that bogus litigation can be shot down at the earliest stage. The Penal Code is also resourceful enough to meet such men (Ch.XI) and must be triggered against them."

18. In the result, the appeal fails with costs incurred throughout by the respondents to be paid by the appellants. A further cost in the sum of Rs.10,000 (Rupees ten thousand only) is imposed on the appellant to be paid to the respondents for prosecuting and prolonging litigation up to this Court in a hopelessly barred suit.

9.13 In the decision in case of Prem Singh v. Birbal reported in (2006) 5 SCC 353, [LQ/SC/2006/410 ;] ">(2006) 5 SCC 353, [LQ/SC/2006/410 ;] [LQ/SC/2006/410 ;] Hon’ble Apex Court has held as under:-

11. Limitation is a statute of repose. It ordinarily bars a remedy, but, does not extinguish a right. The only exception to the said rule is to be found in Section 27 of the Limitation Act, 1963 which provides that at the determination of the period prescribed thereby, limited to any person for instituting a suit for possession of any property, his right to such property shall be extinguished.

12. An extinction of right, as contemplated by the provisions of the Limitation Act, prima facie would be attracted in all types of suits. The Schedule appended to the Limitation Act, as prescribed by the Articles, provides that upon lapse of the prescribed period, the institution of a suit will be barred. Section 3 of the Limitation Act provides that irrespective of the fact as to whether any defence is set out is raised by the defendant or not, in the event a suit is found to be barred by limitation, every suit instituted, appeal preferred and every application made after the prescribed period shall be dismissed.

13. Article 59 of the Limitation Act applies specially when a relief is claimed on the ground of fraud or mistake. It only encompasses within its fold fraudulent transactions which are voidable transactions.

27. There is a presumption that a registered document is validly executed. A registered document, therefore, prima facie would be valid in law. The onus of proof, thus, would be on a person who leads evidence to rebut the presumption. In the instant case, Respondent No.1 has not been able to rebut the said presumption.

28. If a deed was executed by the plaintiff when he was a minor and it was void, he had two options to file a suit to get the property purportedly conveyed thereunder. He could either file the suit within 12 years of the deed or within 3 years of attaining majority. Here, the plaintiff did not either sue within 12 years of the deed or within 3 years of attaining majority. Therefore, the suit was rightly held to be barred by limitation by the trial court.

9.14 In the decision in case of Sunil Kumar v. Ram Parkash reported in (1988) 2 SCC 77, [LQ/SC/1988/20 ;] ">(1988) 2 SCC 77, [LQ/SC/1988/20 ;] [LQ/SC/1988/20 ;] Hon’ble Apex Court has held as under:-

22. In a Hindu family, the karta or manager occupies a unique position It is not as if anybody could become manager of a joint Hindu family. "As a general rule, the father of a family, if alive, and in his absence the senior member of the family, is alone entitled to manage the joint family property." The manager occupies a position superior to other members. He has greater rights and duties. He must look after the family interests. He is entitled to possession of the entire joint estate He is also entitled to manage the family properties. In other words, the actual possession and management of the joint family property must vest in him. He may consult the members of the family and if necessary take their consent to his action but he is not answerable to every one of them.

23. The legal position of karta or manager has been succinctly summarised in the Mayne's Hindu Law (12th Ed. para 318) thus:

318. Manager's Legal position-"The position of a karta or manager is sui generis; the relation between him and the other members of the family is not that of principal and agent, or of partners. It is more like that of a trustee and cestui que trust. But the fiduciary relationship does not involve all the duties which are imposed upon trustees."

24. The managing member or karta has not only the power to manage but also power to alienate joint family property. The alienation may be either for family necessity or for the benefit of the estate. Such alienation would bind the interests of all the undivided members of the family whether they are adults or minors. The oft quoted decision in this aspect, is that of the Privy Council in Hanuman Parshad v. Mt. Babooee, [ 1856] 6 M.I.A. 393. There it was observed at p. 423: ( 1) "The power of the manager for an infant heir to charge an estate not his own is, under the Hindu law, a limited and qualified power. It can only be exercised rightly in case of need, or for the benefit of the estate." This case was that of a mother, managing as guardian for an infant heir. A father who happens to be the manager of an undivided Hindu family certainly has greater powers to which I will refer a little later. Any other manager however, is not having anything less than those stated in the said case. Therefore, it has been repeatedly held that the principles laid down in that case apply equally to a father or other coparcener who manages the joint family estate.

9.15 In the decision in case of Dharma Shamrao Agalawe v. Pandurang Miragu Agalawe reported in (1988) 2 SCC 126, [LQ/SC/1988/131] Hon’ble Apex Court has held as under:-

“9. We respectfully agree with the above observations of this Court in Vasant's case (supra). The joint family property does not cease to be joint family property when it passes to the hands of a sole surviving coparcener. If a son is born to the sole surviving coparcener, the said properties become the joint family properties in his hands and in the hands of his son. The only difference between the right of a manager of a joint Hindu family over the joint family properties where there are two or more coparceners and the right of a sole surviving coparcener in respect of the joint family properties is that while the former can alienate the joint family properties only for legal necessity or for family benefit, the latter is entitled to dispose of the coparcenary property as if it were his separate property as long as he remains a sole surviving coparcener and he may sell or mortgage the coparcenary property even though there is no legal necessity or family benefit or may even make a gift of the coparcenary property. If a son is subsequently born to or adopted by the sole surviving coparcener or a new coparcener is inducted into the family on an adoption made by a widow of a deceased coparcener an alienation made by the sole surviving coparcener before the birth of a new coparcener or the induction of a coparcener by adoption into the family whether by way of sale, mortgage or gift would however stand, for the coparcener who is born or adopted after the alientation cannot object to alientations made before he was begotten or adopted.”

9.16 In the decision in case of Jilubhai Jamubhai v. Bahadurbhai Jamabhai reported in 2020 (212) AIC 776, this Court has held as under:-

“12. In this behalf it would be profitable to refer to few judgments of this court as well as the Apex Court. In the case of Becharbhai Zaverbhai Patel & Another v. Jashbhai Shivabhai Patel & Others (supra), this court while relying upon the judgment of the Apex Court in the case of Dilboo (Smt)(Dead) by Lrs & Anr vs. Dhanraji (Smt)(Dead) and Others reported in (2000) 7 SCC 702 [LQ/SC/2000/1355] held that immediately after the execution of the registered sale deed followed by mutation of entry in favour of the party on the basis of the registered sale deed it is deemed to have the knowledge of the said transaction and that by making vague averments in the plaint that earlier he had no knowledge and came to know about the transaction subsequently; by such clever drafting it would be impermissible for the plaintiff to bring the suit within the period of limitation which otherwise is barred by law of limitation. Relevant paragraphs 6.2 and 6.3 read thus:

"6.2. As stated above, registered sale deeds was executed by the original defendant no.1 in favour of original defendants no. 3 and 4 (petitioners herein) on dated 25.8.1975. It is also required to be noted and even so pleaded / averred in the plaint that mutation entry in favour of defendant nos. 3 and 4 on the basis of registered sale deed was made in the revenue record vide entry no.1115 and not only that even in 1981 there was partition between defendants no. 3 and 4 and the land bearing Survey No.380 (disputed suit land) has gone into the share of Ambalal Patel defendant no.4 and his name is mutated in the revenue record vide mutation entry no.1283 dated 10.6.1981.As held by the Hon'ble Supreme Court in the case of Dilboo (Smt) (Dead) by L.Rs., [2000 (7) SCC 702] [LQ/SC/2000/1355] whenever the document is registered the date of registration becomes the date of deemed knowledge and in other cases where a fact could be discovered by due diligence then deemed knowledge would be attributed to the plaintiff because a party cannot be allowed to extend the period of limitation by merely claiming that he had no knowledge. Thus when the sale deed dated 25.8.1975 was registered in the year 1975 itself and even the mutation entry was made in favour of defendants no.3 and 4 on the basis of the registered sale deed immediately thereafter the plaintiff is deemed to have the knowledge of the said transaction and by making such vague averments in the plaint that earlier he had no knowledge and he came to know about the transaction only in the 2010, by such clever drafting the plaintiff cannot be permitted to bring the suit within the period of limitation which otherwise is barred by law of limitation as the suit challenging the registered sale deed dated 25.8.1975 has been filed after a period of 35 years. Under the circumstances and considering the aforesaid, it appears to the Court that learned trial Court has materially erred in rejecting the application Exh.14 and in not rejecting the plaint exercising the power under Order 7 Rule 11(d) of the Code of Civil Procedure. Under the circumstances, the impugned order passed by the learned trial Court cannot be sustained and same deserves to be quashed and set aside.

6.3. Now, so far as the decision of the Hon'ble Supreme Court in the case of Balasaria Construction (P) Ltd., [2006 (5) SCC 658] [LQ/SC/2005/1147 ;] ">[2006 (5) SCC 658] [LQ/SC/2005/1147 ;] [LQ/SC/2005/1147 ;] relied upon by the learned advocate for the original plaintiffs, as stated above it cannot be disputed that while considering application under Order 7 Rule 11(d) of Code of Civil Procedure at that stage the Court is required to consider the averments in the plaint and supporting documents produced along with plaint only. However, considering the facts and circumstances of the case and as stated above even considering the averments and the pleadings in the plaint as they are, the suit is clearly barred by law of limitation. Under the circumstances, the impugned order passed by the learned trial Court deserves to be quashed and set aside."

13. This court in the case of Kanjibhai Bhagwanjibhai Patel v. Nanduben Shamjibhai Sorathiya through POA Dharmeshbhai Trivedi reported in 2013 (1) GLR 51 after considering various decisions of the Apex Court with respect to the provisions of Order VII Rule 11 of the Code has observed and held that on considering the averments in the plaint if it is found that the suit is time barred, the plaint can be rejected in exercise of the powers of Order VII Rule 11(d) of the Code.

14. The Apex Court in the case of Dilboo (Smt)(Dead) by Lrs & Anr vs. Dhanraji (Smt)(Dead) and Others (supra) has held that whenever the document is registered the date of registration becomes the date of deemed knowledge and in other cases where a fact could be discovered by due diligence then deemed knowledge would be attributed to the plaintiff because a party cannot be allowed to extend the period of limitation by merely claiming that he had no knowledge. The Apex Court while considering Articles 134 and 148 of the Limitation Act providing for period of limitations held that so far as Article 134 is concerned, the time beings to run when the transfer becomes known to the plaintiff whereas Article 148 is concerned, the limitation starts running when the right to redeem or to recover possession accrues. The Apex Court while considering Article 134 of the Limitation Act observed and held that the period of 12 years has to run from the date of knowledge by the plaintiff of such transfer and it is always for the party who files the suit to show that the suit is within time. It has been further observed that in cases where the suit is filed beyond the period of 12 years the plaintiff would have to aver and then prove that the suit is within 12 years of his / her knowledge and in the absence of any averment or proof to show that the suit is within time, it is the plaintiff who would fail.

15. Pertinently, the first sale deed dated 2nd August, 1982 was registered with the office of the Sub-Registrar bearing registration No.1210 in the favour of the respondent No.3. Further, the second registered sale deed dated 25th October, 1993 was executed by the respondent No.3 in favour of the respondents No.4 and 5 in the year 1993 by when, the appellants had already attained the majority; however, the said registered sale deed was not challenged by the appellants. Then followed the transaction in the year 2008 executed by the respondents No. 4 and 5 in favour of the respondent No.6 on 27th March, 2008 which also remained unchallenged within the period of limitation of three years. It is only in the year 2011 that the appellants after so called collection of information from the Talati-cumMantri as well as from the respondents No. 1 and 2 that it came to the knowledge that the land in question has been sold away by the respondents No.1 and 2 namely the mother and elder brother respectively of the appellants, in favour of the respondent No.3 in the year 1982.

17. It has been averred in the plaint that the appellants had undivided share in the land in question; however, the respondents No.1 and 2 taking advantage of the fact that the appellants were minor and without obtaining any consent and without protecting the rights of the appellants, and without following any procedure under the Guardians and Wards Act and with a view to destroy the rights of the appellants, executed the sale deed in favour of the respondent No.3. Except mentioning that when the appellants obtained the revenue records on 1st July, 2011 and 2nd July, 2011 that it came to their knowledge about the execution of the sale deed in the year 1982; the plaint is conspicuously silent about the aspects namely when the appellants attained majority; why the appellants had no knowledge and were not aware about the execution of the sale deeds; what the appellants did for all these years, that is, from 1982 till the year 2011. Considering the substantial time lag between the execution of all the sale deeds, it is difficult to believe that the appellants were not aware about the execution of all the three sale deeds, that is, the first sale deed in the year 1982, followed by the second in the year 1993 and lastly in the year 2008.

18. In all the respects, the suit filed by the appellants on 26th July, 2011, is hit by the provisions of Article 60 of the Limitation Act and as discussed hereinabove, except mentioning that it is only when the appellants obtained the revenue record somewhere in the month of July 2011 that it came to their knowledge of all the three sale deeds executed in favour of the respondents No. 3 to 6, no other averments are made substantiating the said aspect that the suit is within limitation. In the absence of any averments made in the plaint to the effect that the suit is within time or pointing out any other circumstances warranting recording of evidence; the contention that the issue of limitation being a mixed question of law and facts the plaint ought not to have been rejected at the threshold; is devoid of any merit and does not deserve acceptance.

19. The trial court has observed that considering the first registered sale deed executed in the year 1982 and taking the year 1982 as birth year, the appellants would have attained majority by the year 2000. Considering the same, the suit filed in the year 2011 is clearly barred by limitation. The trial court has further observed and held that the suit has been filed after 30 years of the first registered sale deed in the year 1982 and after 18 years from the execution of the second registered sale deed in the year 1993. It has been also held that the suit has been filed on 26th July, 2011 that is beyond the period of 3 years from the execution of the third registered sale deed on 27th March, 2008. As is well settled and as observed and held by the Apex Court in the case of Dilboo (Smt)(Dead) by Lrs & Anr vs. Dhanraji (Smt) (Dead) and Others (supra) that the registered document is a deemed notice. Thus on all the three counts the suit filed by the appellants on 26th July, 2011 is clearly barred by the law of limitation and thus the trial court rightly allowed the application Exhibit 58 filed by the respondent No.6 under the provisions of Order VII Rule 11(d) of the Code.”

9.17 In the decision in case of Becharbhai Zaverbhai Patel v. Jashbhai Shivabhai Patel reported in 2013 (1) GLR 398, this Court has held as under:-

6. At the outset, it is required to be noted that in the plaint the original plaintiffs have challenged the registered sale deed dated 25.8.1975 which has been executed by the original defendant no.1 in favour of defendants no. 3 and 4 and the said suit has been filed in the year 2010 i.e. after a period of 35 years. It is also required to be noted and even so pleaded / averred in the plaint that name of father of the defendant no.1 was mutated in the revenue record and even thereafter on the death of father of the defendants no.1 and 2 - Chottabhai Bhagwanbhai mutated in the revenue record on 11.10.1979 vide mutation entry no.1024. It is also further averred in the plaint that even the name of defendants no. 3 and 4 were also mutated in the revenue record pursuant to the sale deed dated 25.8.1975 vide entry no.1115 and not only that even in 1981 there was partition between defendants no. 3 and 4 and the land bearing Survey No.380 (disputed suit land) has gone into the share of Ambalal Patel -defendant no.4 and his name is mutated in the revenue record vide mutation entry no.1283 dated 10.6.1981. Even considering cause of action pleaded in the plaint in para 8, it appears to the Court that the averments in the plaint are too vague and nothing has been mentioned in the said para on which date he came to know about the registered sale deed dated 25.8.1975. Even in the entire plaint nothing has been pleaded with respect to limitation. Mere cleaver drafting in the plaint and by such vague averments and the pleading the cause of action in the plaint, the suit which is otherwise barred by law of limitation can not be brought within a period of limitation.

6.1 It is not disputed that while considering application under Order 7 Rule 11 (d) of the Code of Civil Procedure, the Court is required to consider the averments in the plaint and the supporting documents produced along with plaint. However, it cannot be disputed that if on the face of it and even considering the averments made in the plaint, it is found that the suit is clearly barred of law of limitation, the plaint can be rejected in exercise of powers under Order 7 Rule 11 (d) of the Code of Civil Procedure. Even considering the decision of the Hon'ble Supreme Court in the case of N.V.Srinivasan Murthy vs. Mariyamma (Dead) by proposed Lrs reported in AIR 2005 SC 2897 [LQ/SC/2005/673] as well as decision of the Hon'ble Supreme Court in the case of Dilboo (Smt) (Dead) Bij lea (supra), the plaint can be rejected in exercise of powers under Order 7 Rule 11(d) of the Code of Civil Procedure if it is found that even accepting all the averments made in the suit, it is found therefore, the suit is barred by law limitation. Considering the above proposition of law laid down by the Hon'ble Supreme Court, it is required to be considered whether considering facts and circumstances of the present case and even considering averments made in the plaint and even accepting all the averments made in the plaint as they are, whether the suit is barred by law of limitation or not

6.2 As stated above, registered sale deeds was executed by the original defendant no.1 in favour o f o r i g i n a l d e f e n d a n t s n o . 3 and 4 (petitioners herein) on dated 25.8.1975. It is also required to be noted and even so pleaded / averred in the plaint that mutation entry in favour of defendant nos. 3 and 4 on the basis of registered sal e de ed was m a d e in th e r e ve n u e record vi d e ent ry n o. 111 5 and not only that even in 1981 there was partition between defendants no. 3 and 4 and t h e l a n d b e a r i n g S u r v e y N o . 3 8 0 ( d i s p u t e d suit land) has gone into the share o f A m b a l a l P a t e l - d e f e n d a n t n o . 4 and his name is mutated in the revenue record vide mutation entry n o . 1 2 8 3 d a t e d 1 0 . 6 [LQ/CalHC/0/6 ;] ">0 . 6 [LQ/CalHC/0/6 ;] [LQ/CalHC/0/6 ;] . 1 9 8 1 . A s h e l d b y t h e H o n ' b l e S u p r e m e C o u r t in the case of Dilboo (Smt) (Dead) Bij lea(supra) whenever the document is registered the date of registration becomes the date of deemed knowledge and in other cases where a fact could be discovered by due diligence then deemed knowledge would be attributed to the plaintiff because a party cannot b e a l l o w e d to extend the period of limitation by merely claiming that he had no knowledge. Thus when the s a l e d e e d d a t e d 2 5 . 8 . 1 9 7 5 was registered in the year 1975 itself and even the mutation entry was made in favour of defendants no.3 and 4 on the b a s i s o f the r e g i s t e r e d s a l e d e e d i m m e d i a t e l y t h e r e a f t e r t h e p l a i n t i ff i s deemed to have the knowledge of the said transaction and by making such vague averments in the plaint that earlier he had no knowledge and he came to know about the transaction only in the 2010, by such clever drafting the plaintiff cannot be permitted to bring the suit within the period of limitation which otherwise is barred by law of limitation as the suit challenging the registered sale deed dated 25.8.1975 has been filed after a period of 35 years. Under the circumstances and considering the aforesaid, it appears to the Court that learned trial Court has materially erred in rejecting the application Exh.14 and in not rejecting the plaint exercising the power under Order 7 Rule 11(d) of the Code of Civil Procedure. Under the circumstances, the impugned order passed by the learned trial Court cannot be sustained and same deserves to be quashed and set aside.

6.3. Now, so far as the decision of the Hon'ble Supreme Court in the case of Balasaria Construction (P)Ltd (supra) relied upon by the learned advocate for the original plaintiffs, as stated above it cannot be disputed that while considering application under Order 7 Rule 11(d) of Code of Civil Procedure at that stage the Court is required to consider the averments in the plaint and supporting documents produced along with plaint only. However, considering the facts and circumstances of the case and as stated above even considering the averments and the pleadings in the plaint as they are, the suit is clearly barred by law of limitation. Under the circumstances, the impugned order passed by the learned trial Court deserves to be quashed and set aside.

10. At this it is appropriate to take into account Order 7 Rule 11 of the Civil Procedure Code which reads as under:-

“Rejection of plaint.

Order 7 Rule 11. The plaint shall be rejected in the following cases:-

(a) where it does not disclose a cause of action;

(b) where the relief claimed is undervalued, and the plaintiff, on being required by the Court to correct the valuation within a time to be fixed by the Court, fails to do so;

(c) where the relief claimed is properly valued but the plaint is written upon paper insufficiently stamped, and the plaintiff, on being required by the Court to supply the requisite stamp-paper within a time to be fixed by the Court, fails to do so;

(d) where the suit appears from the statement in the plaint to be barred by any law;

[(e) where it is not filed in duplicate;

[(f) where the plaintiff fails to comply with the provisions of rule 9]]

[Provided that the time fixed by the Court for the correction of the valuation or supplying of the requisite stamp-papers shall not be extended unless the Court, for reasons to be recorded, is satisfied that the plaintiff was prevented by any cause of an exceptional nature from correcting the valuation or supplying the requisite stamp-papers, as the case may be, within the time fixed by the Court and that refusal to extend such time would cause grave injustice to the plaintiff.]”

11. The case of the original plaintiff is that he has purchased the subject parcel of plot by way of registered sale deed bearing registration Nos. 867 and 868 and from that he is legal owner and occupant of the subject plot. In fact on bare reading of the plaint in paragraph 3, 4 and 5 it has categorically mentioned that:-

“(3) I have not granted any power of attorney to anyone to entered into deal or transaction or to do any proceedings pertaining to both the said plots and despite that, misusing my name, bogus power of attorney has been fabricated by Mr. Navinkumar Thakkar putting my fake signature. I do not know Navinkumar Thakkar and never met him nor I have signed so called power of attorney by remaining present before the Notary at Bhuj. And my so called power of attorney holder Navinkumar Govindji Thakkar has sold the said plot paiki Plot No.24 to Patel Lalji Nanji Vekaria by Registered Sale Deed No.2914 dated 15/09/1993. Moreover, out of the said plot, Plot No.24 has been sold to Patel Valji Devji Vekaria and Kantaben Valji Vekaria by Registered Sale Deed No.2913 dated 15/09/1993. Thus, my so called power of attorney holder, without my willingness and permission, prepared bogus power of attorney and sold both the said plots of my exclusive ownership by cheating which is illegal and with misleading facts.

(4) Thereafter, out of the said plots, the said Patel Lalji Nanji Vekaria sold Plot No.24 to Jadavji Jinabhai Gorasia by Registered Sale Deed No.172 dated 08/01/1996 and out of the said plots, Plot No.23 has been sold by Patel Valji Devji Vekaria to Jadavji Jinabhai Gorasia by Registered Sale Deed No.173 dated 08/01/1996. Both the said sale deeds are also illegal and with misleading facts as stated above.

(5) The said plot no.23 and 24 are under the possession, occupancy and ownership of the plaintiff. The plaintiff has constructed boundary wall at both the said plots and a watchman room and I have also got Electricity Connection for the residence in my name from PGVCL – Madhapar as per rules. Last payment thereof has been made vide Receipt dated 08/11/2012. In addition, Madhapar Junavas Gram Panchayat Office has issued Property Certificate for both plots on 29/01/2007 in the name of the plaintiff. Moreover, I gave public notice in daily ‘Kutch Mitra’ dated 28/10/20006 through Mr. J.M. Zaveri, Advocate warning the public not to purchase both the said plots as the same have been sold to third party on the basis of Bogus Power of Attorney in the name of the plaintiff. Moreover, I have issued notices through my advocate by Registered A.D. to Mr. Valji Devji Vekaria, Kantaben Valji Vekaria, Jadavji Jinabhai Gorasia and Patel Lalji Vekaria, who got executed Sale Deed on the basis of bogus Power of Attorney, despite that no reply has been given by them. Copy of all the said documents are submitted with list of documents herewith.“

12. It appears that the legal notice was issued through advocate in the public newspaper namely Kutch-Mitra daily in 2006. However, the present suit was filed in 2012 and there is no explanation worth the name in the plaint and therefore, the learned Trial Court has rightly rejected the plaint under the provision of Order 7 Rule 11 of the Civil Procedure Code.

13. The original defendant while filing an application below Exh.31 has clearly mentioned that by way of filing the present suit, he has claimed the relief with regard to the sale deed which is executed in the year 1996 and thereafter, subsequent sale deed executed in favour of respondent No. 4 by respondent Nos. 1, 2 and 3. He is absolutely silent on a ground of the so-called bogus power of attorney, through which he has challenged the registered sale deed executed in favour of respondent no.4. Therefore, the learned Trial Court has rightly allowed the application by passing the impugned judgment and order.

14. It is settled principle of law that by merely cleaver drafting to initiate the cause of action within limitation, is not sufficient under the provisions of Limitation Act to initiate the proceedings and to challenge the sale deed, which is executed in way back in the year of 1996 and subsequently in 2006.

15. The averments is made in the plaint that he had issued a public notice in the Kutch–Mitra Daily in 2006. So he was very much aware with the transaction which is executed in favour of respondent No.4 in 2006. However, he has instituted the present suit in 2007 inspite of knowing the fact situation.

16. Therefore, learned Trial Court has rightly exercised the jurisdiction vested in it by invoking the provision of Order 7 Rule 11-D of the Civil Procedure Code. Against the said, the appellant has preferred the appeal under Section 96 of CPC before the learned Lower Appellate Court and that was also came to be dismissed by the learned Lower Appellate Court and confirmed the judgment and decree passed by the learned Trial Court.

17. The lower Appellate Court has examined the records of the Trial Court and after perusing the record and proceedings of the learned Trial Court, the learned Appellate Court has discussed the evidence on record and the provision of law and there is no infirmity in the impugned judgment and decree passed by the learned Trial Court and the leaned Lower Appellate Court and it is a settled principle that under Section 100 of the Act, this Court has very limited scope to entertain the Second Appeal. The present Second Appeal is not involved any substantial question of law, question of law and / or question of fact.

18. Hence, the present Second Appeal is devoid of any merits. So far as the contention with regard to the noncompliance of the Order 41 Rule 31 of the Civil Procedure Code is concerned, it appears that the suit is not decided by invoking full-fledged trial but on the basis of the relevant material placed by the plaintiff and averments made in the plaint, learned Trial Court has exercised the power under Order 7 Rule 11-D of the Civil Procedure Code. Therefore, so far as the provision of Order 41 Rule 31 of the Civil Procedure Code is concerned, it is not helpful to the appellant in the present case.

19. In view of the aforesaid discussion and in view of the settled principle of law, the present Second Appeal does not deserve to be entertained and the same is required to be dismissed.

20. So far as the provision of Order 7 Rule 11 of the Civil Procedure Code is concerned, it is now no more in res integra, in view of the fact that the suit is filed on the date of knowledge of the registered sale deed. In the present case, it is an admitted fact, considering the averments made in the plaint itself, that the plaintiff has challenged the registered sale deed executed in the year 1996 and subsequent sale deed in the year 2012. Considering the provisions of Limitation Act, it is clearly barred by the law of limitation and therefore, the learned Trial Court has rightly dismissed the plaint and subsequently, the same was confirmed by the learned Lower Appellate Court while exercising the jurisdiction under Section 96 of Civil Procedure Code.

21. This Court has not found any infirmity or any illegality in both the judgments of learned Trial Court as well as learned Lower Appellate Court. Both the Courts have after taking in to account all the relevant aspects and evidence, passed the impugned judgment and order and since there is no substantial question of law involved in the present Second Appeal, present Second Appeal is hereby dismissed. No order as to costs.

22. In view of the disposal of main Second Appeal, the connected Civil Application does not survive and the same also stands disposed of accordingly.

23. After pronouncement of the judgment, learned advocate for the appellant requests to stay the judgment for at least 8 weeks.

24. Considering the fact that the suit is hopelessly time barred and the the sale deeds have been challenged after a very long period, the request of staying the judgment is not entertained. Therefore, the same is hereby rejected.