1

REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. 3500 OF 2018

(Arising out of SLP (Civil) No.26401 of 2017)

CHHOTANBEN AND ANR. …..Appellant(s)

:Versus:

KIRITBHAI JALKRUSHNABHAI THAKKAR

AND ORS. ....Respondent(s)

J U D G M E N T

A.M. Khanwilkar, J.

1. This appeal, by special leave, takes exception to the

judgment and order dated 13

th January, 2017 of the High

Court of Gujarat at Ahmedabad in Civil Revision Application

No.76 of 2016.

2. The appellants filed a suit for declaration and permanent

injunction on 18

th October, 2013, against the respondents

before the Principal Senior Civil Court, Anand, being Regular

2

Civil Suit No.166 of 2015 (Old No. Special Civil Suit No.193 of

2013). The frame of the subject suit is on the assertion that

the appellants and original defendant Nos.1 & 2 were in joint

ownership and possession of an ancestral property inherited

by them from their predecessor (father), deceased Bawamiya

Kamaluddin Saiyed, bearing Survey No.113/1+2, area H.1-37-

59 Ara, Akar Rs.15-81 paise. That land is old tenure

agricultural land situated at Mouje Village, Hadgud Taluka

and District Anand. The said ancestral, joint, undivided land

was jointly possessed and used and enjoyed by the appellants

(plaintiffs) and original defendant Nos.1 & 2 (predecessors of

respondent Nos.2 to 15), after the demise of their father

Bawamiya Kamaluddin Saiyed, being in his straight line of

heirs. The names of Jahangirmiya Bawamiya Kamaluddin

Saiyed and Hussainmiya Bawamiya Kamaluddin Saiyed

(original defendant Nos.1 & 2 respectively) came to be recorded

in the record of rights along with the names of the appellants

and since that time, all of them were jointly in possession and

usage of the undivided land. The appellants assert that they

have half (1/2) share, rights, powers, possession and usage

3

rights in the property. It is their case that without their

knowledge the original defendant Nos.1 & 2 transferred the

said land after forging their (appellants) signatures. The

appellants were not aware about the said transaction effected

vide registered sale deed No.4425 dated 18

th October, 1996,

which they came to know from their community members,

immediately whereafter they made enquiry in the office of Sub

Registrar at Anand. It was revealed to them that the land has

already been transferred by a registered sale deed dated 18

th

October, 1996 in favour of defendant Nos.4, 5 and 6 (Anilbhai

Jaikrishnabhai Jerajani, Kiritbhai Jaikrishnabhai Thakkar

and Kekanbhai Jaikrishnabhai Thakkar , respectively). They

promptly applied for a certified copy of the registered sale

deed. They were also informed that Jaikrishnabhai Prabhudas

Thakkar had expired and, therefore, the defendant Nos.3 to 6

received the land as heirs. It is then asserted that from the

registered sale deed, they came to know that their thumb

impressions were obtained as witnesses in the presence of

Bhikhansha Pirasha Divan. They asserted that they had never

signed or gave their thumb impressions upon any such deed,

4

in any manner, in front of any witness. It is then stated that

some person has been fraudulently involved for putting thumb

impressions on the sale deed. They have asserted that the

thumb impressions on the sale deed did not belong to them

and that they were ready and willing to prove that fact by

providing their genuine thumb impressions in front of officers.

It may be relevant to reproduce paragraph 4 of the plaint

which reads thus:

“4. The paragraph no.1 property is jointly owned, co-shared,

jointly used and possessed by the applicants and

respondents nos.1 and 2. The respondents nos.1 and 2 do

not have any rights to sell the property on their own. In case

if the respondents nos.1 and 2 have the willingness to sell

the property, they are required to obtain our consent. This

was very well in the knowledge of the respondents nos.1 and

2 yet they have entered into a sale deed for the property in

an illegal manner. But the actual possession and usage of

the suit property is jointly undertaken by us. Before two

days, the applicants meet the respondents and asked them

not to hinder, harass, etc. as to these rights on the land. We

asked the respondents to partition our half part, provide

actual possession of the land, yet the respondents did not

consider this request. On the contrary it was stated by them

that the respondents nos.2 to 6 shall sell the property to

someone else, the courts are open and we can take steps

whatever we can.”

3. In paragraph 6 of the plaint, the appellants have stated

about the cause of action for filing the suit in the following

words:

5

“6. The cause as to the filing of the suit, as mentioned

under the above mentioned paragraph pertains to the fact

that the respondents nos.1 and 2 without the knowledge of

the applicants, while keeping the applicant in dark, removed

the name of the applicants from the record of rights and

entered into a registered sale deed no.4425 dated

18.10.1996 without the knowledge of the applicants. Upon

getting the above mentioned knowledge, the applicants meet

the respondents personally before two days and requested

them to cancel the sale deed and hand over the clear,

marketable and actual vacant possession of the property to

the applicants. Yet the respondents did not consider the

request and mentioned that the courts are open for us

thereby asking us the applicants to do whatever we wished

to do. Therefore the present issue has arise at the village

Hadgud without the jurisdiction of the honourable court.”

4. As mentioned above, the suit came to be filed for

declaration and permanent injunction and for the following

reliefs:

“a) The honourable court be pleased to declare that the

property mentioned under the paragraph no.1 being situated

at Mouje village Hadgud, Taluka and district Anand, survey

no.113/1+2, area heacter 1-37-59 Ara, Akar Rs. 15-81 paisa

old tenure agricultural land is ancestral property of the

applicants and thereby the applicants have undivided ½

(half) part, share, interest and right in the property and a

partition of the land be undertaken in a judicial manner and

the actual possession, usage, etc. be provided to the

applicants in the interest of justice.

b) The honourable court be pleased to declare that the

Mouje village Hadgud, Taluka and district Anand, survey no.

113/1+2, area Heacter 1-37-59 Ara, akar Rs. 15-81 Paise old

tenure agricultural land is ancestral, joint, undivided, jointly

possessed and used property of the applicants and the

respondents nos.1 and 2 and thereby the respondents nos.1

6

and 2 solely do not have the rights and powers to sell or

interference in the title of the property and further declare

that the registered sale deed no.4425 dated 18.10.1996 in

the favour of the respondents nos.4 and 6 is null and void,

void ab-initio, cancelled, false and frivolous and thereby the

honourable court be kind enough to declare in the interest of

justice that the respondents nos.3 to 6 do not receive any

kind of rights-powers as to the land on the basis of this

particular sale deed.

c) The honourable court be pleased to pass a permanent

injunction order against the respondents and in the favour of

the applicants such that, neither the respondents nor

through their agents, servants, persons, etc. sell, mortgage,

charge, lien, etc. the or construct, etc. upon the property

mentioned under the paragraph no.1 and situated at the

Mouje village Hadgud, Taluka and district Anand, survey no.

113/1+2, area Heacter 1-37-59 Ara, akar Rs. 15-81 Paise old

tenure agricultural.

d) The honourable court be pleased to pass a permanent

injunction order against the respondents and in the favour of

the applicants such that, neither the respondents nor

through their agents, servants, persons, etc. interfere,

obstruct, hinder, etc. the ancestral, joint, undivided

possession, usage, etc. of the applicants upon the property

mentioned under the paragraph no.1 and situated at the

Mouje village Hadgud, Taluka and district Anand, survey no.

113/1+2, area Heacter 1-37-59 Ara, Akar Rs.15-81 Paise old

tenure agricultural.

e) The honourable court be pleased to pass a permanent

injunction order against the respondents and in the favour of

the applicants such that, neither the respondents nor

through their agents, servants, persons, etc. would alter the

record of rights entries for the property mentioned under the

paragraph no.1 and situated at the Mouje village Hadgud,

Taluka and district Anand, survey no. 113/1+2, area

Heacter 1-37-59 Ara, Akar Rs.15 -81 Paise old tenure

agricultural.

7

f) The honourable court be pleased to pass an appropriate

order found proper and efficacious by the honourable court.

g) The honourable court be pleased to order the respondents

to provide for the cost as the suit.”

5. After filing of the suit, an application was filed on 19

th

November, 2014 under Orders XIII and XVI of the Code of Civil

Procedure, 1908 (for short “CPC”) read with Sections 67 and

71 of the Evidence Act for directions to defendant Nos.3 to 6 to

produce before the Court, the original deed executed by the

original defendant Nos.1 & 2 in respect of the suit land and to

obtain the admitted thumb impressions of the appellants and

send it for scientific examination and comparison of the

thumb impressions by a Handwriting Expert to unravel the

truth. The original defendant Nos.4 to 6 filed reply to the said

application on 3

rd February, 2015, to oppose the same.

Thereafter, the defendant No.5 (respondent No.1) on 17

th April,

2015 filed an application under Order VII Rule 11 (d) for

rejection of the plaint on the ground that the suit was barred

by limitation having been filed after 17 years. The appellants

filed reply to the said application. Both the applications under

Order XIII Rule 16 and under Order VII Rule 11 (d), were

8

disposed of by the 4

th Additional District Judge, Anand on 20

th

January, 2016 by separate orders. As regards the application

filed by the plaintiffs (appellants), the Court allowed the same

by passing the following order:

“O R D E R

The application is hereby allowed.

The defendants are directed to produce registered sale deed

no.4425 dt.18/10/1996 in the court and further the register

civil court is directed to take specimen thumb impression of

the plaintiffs as per rules and further such sale deed along

with the specimen of thumb impressions of the plaintiffs be

sent to thumb impression of the witnesses in such sale deed

are of the plaintiffs or not.

Further the thumb impression expert is directed to submit

his report within period of 30 days after receiving the

documents.”

6. As regards the application filed by defendant No.5

(respondent No.1) for rejection of the plaint, the said

application was dismissed by the Trial Court on the same day

i.e. 20

th January, 2016. The Trial Court opined that the

contention urged by defendant No.5 (respondent No.1) for

rejection of the plaint was not tenable as the factum of suit

being barred by limitation was a triable issue, considering the

averments in the plaint. The Trial Court observed thus:

9

“3. I have given my thoughtful cons ideration to the

submission made by the learned advocate for both the

parties. The plaintiffs have filed this suit to set aside in

registered sale deed no.4425 dt. 18/10/1996. And this suit

has been filed on 18/10/2013. And the contention of the

Ld. Advocate for defendant no.5 that the suit has been filed

after delay of almost 17 years and hence the suit is prima

faciely barred by law of limitation and other submissions of

the Ld. Advocate of defendant no. 5 that the plaintiffs do not

have prima facie case, it cannot be considered at this stage

because whether there is delay of almost 17 years in filling

this suit or not and whether it is barred by law of limitation

or not, it is subject matter of trial and moreover, the other

submissions of Ld. Advocate for defendant no.5 regarding no

prima facie case in favour of plaintiff also cannot be

considered as these are also the subject matter of trial which

can be decided only after taking the evidence. Moreover, at

the time of deciding the application under order 7 rule 11

the Court has to just look into the averments made in plaint

only and the plea or defense raised by defendant cannot be

taken into account at the stage of deciding the application

under Order 7 Rule 11 and here in this case merely looking

to the pleading in the plaint it does not come out that the

suit barred by law of limitation. Moreover, I am of humble

view the case law cited by Ld. Advocate for plaintiffs reported

as 2015 (1) GLH 1, fully support to the case in hand.

Moreover, I am of humble view that, the case cited by Ld.

Advocate for defendant reported in 2015(2) GLH 3 55 and

2013 (1) GLR 398, does not support in the present case as

the factual position of these cases and present case are

different.”

7. Respondent No.1 carried the matter before the High

Court by way of a Civil Revision Application No.76/2016

against the order passed by the Trial Court dismissing his

application under Order VII Rule 11(d) of CPC for rejection of

10

the plaint. The High Court allowed the application under

Order VII Rule 11(d) of CPC filed by respondent No.1

(defendant No.5) and reversed the decision of the Trial

Court on the finding that the suit was barred by limitation.

For so holding, the High Court in the impugned judgment

observed thus:

“18. This Court notices that the plaintiffs are the sisters and

defendants No.1 and 2 in the suit of the year 2013 have

chosen not to file written statement. Thereby the original

defendants No.1 and 2 who are sellers have not made their

stand clear. Strong possibility cannot be ruled out that the

plaintiffs after about 20 years of the registered sale deed has

chosen to bring a collusive suit. It is true that only detail of

the plaint shall be examined at the stage of considering

application under Order VII Rule 11 of CPC. From a bare

reading of the plaint, it is clearly indicative that the

registered sale deed has been effected in the year 1996 where

the plaintiffs have affixed their thumb impression as

witnesses in the very document and the same came to be

challenged in the year 2013. The reason is not very far to

fetch. With the phenomenal increase in the land price in the

State of Gujarat, such litigations by some of the family

members are sponsored litigations by other unscrupulous

elements are so often initiated. It is not at all difficult to

engineer the same and upset many equations of the

purchasers who have enjoyed the title and p eaceful

possession for many years. Attempt is made to question the

registered sale deed on the ground that these were the

ancestral property and 7/12 Form reflected the name of the

revisionist and other defendants. Revenue entry has also

been mutated soon after the registered sale deed in favour of

the revisionist and other defendants in the year 1997. The

mutation order of village form has been effected on the basis

of such registered sale deed on 21

st

January, 1997. Copy of

which has been issued on 31

st

March, 1997. For such

inexplicable delay plaintiffs ought to have brought on record

substantiating the documents. However, the documents

which have been brought also point out that the plaintiffs’

11

suit is barred by law of limitation for having been preferred

after expiry of three years period. It is to be noted that even

during the course, when revenue authority mutated the

names of present revisionist and other respondents, no

objection came to be raised and it is almost after 18 years,

such objections have surfaced.”

8. The aforementioned decision of the High Court is the

subject matter of this appeal at the instance of the appellants

(plaintiffs). According to the appellants, the High Court

committed manifest error in being swayed away by the fact

that the suit was filed after about 17 years. It has proceeded

on the basis of assumptions and surmises and not in

consonance with the limited sphere of consideration at the

threshold stage for examining the application for rejection of

the plaint in terms of Order VII Rule 11(d) of CPC. It has not

even bothered to analyse the relevant averments in the plaint

which, it is well settled, has to be read as a whole and has also

not adverted to the reasons recorded by the Trial Court that

the factum of suit being barred by limitation was a triable

issue in the facts of the present case.

9. The respondents, on the other hand, would contend that

there is no infirmity in the view expressed by the High Court

12

and being a possible view coupled with the fact that the suit

instituted by the appellants appears to be a collusive suit, no

interference in exercise of jurisdiction under Article 136 of the

Constitution, is warranted. According to the contesting

respondents, it is unlikely that the appellants who are sisters

of original defendant Nos.1 & 2, would not have any

knowledge about the transaction effected vide registered sale

deed and especially, when defendant Nos.3 to 6 were in

possession of the land for such a long time, which fact is

reinforced from the mutation entries recorded in 1997 and

including the conversion of the land from agricultural to non-

agricultural use. According to the contesting respondents, this

appeal ought to be dismissed.

10. We have heard Mr. Purvish Jitendra Malkan, learned

counsel for the appellants and Mr. Gaurav Agrawal, learned

counsel for the contesting respondents.

11. 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

13

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.

12. 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

14

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 18

th 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

15

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.

13. 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

16

Vs. State of Maharashtra and Others

1, Mayar (H.K.) Ltd.

and Others Vs. Owners & Parties, Vessel M.V. Fortune

Express and Others

2 and also T. Arivandandam Vs. T.V.

Satyapal and Another

3.

14. These decisions have been noted in the case of Church

of Christ Charitable Trust and Educat ional Charitable

Society Vs. Ponniamman Educational Trust ,

4 where this

Court, in paragraph 11, observed thus:

“11. This position was explained by this Court in Saleem

Bhai v. State of Maharashtra, in which, while considering

Order 7 Rule 11 of the Code, it was held as under: (SCC p.

560, para 9)

“9. A perusal of Order 7 Rule 11 CPC makes it

clear that the relevant facts which need to be

looked into for deciding an application

thereunder are the averments in the plaint. The

trial court can exercise the power under Order 7

Rule 11 CPC at any stage of the suit —before

registering the plaint or after issuing summons

to the defendant at any time before the

conclusion of the trial. For the purposes of

deciding an application under clauses (a) and (d)

of Rule 11 of Order 7 CPC, the averments in the

plaint are germane; the pleas taken by the

defendant in the written statement would be

wholly irrelevant at that stage, therefore, a

direction to file the written statement without

deciding the application under Order 7 Rule 11

CPC cannot but be procedural irregularity

1 (2003) 1 SCC 557

2 (2006) 3 SCC 100

3 (1977) 4 SCC 467

4

(2012) 8 SCC 706

17

touching the exercise of jurisdiction by the trial

court.”

It is clear that in order to consider Order 7 Rule 11, the

court has to look into the averments in the plaint and the

same can be exercised by the trial court at any stage of the

suit. It is also clear that the averments in the written

statement are immaterial and it is the duty of the Court to

scrutinise the averments/pleas in the plaint. In other words,

what needs to be looked into in deciding such an application

are the averments in the plaint. At that stage, the pleas

taken by the defendant in the written statement are wholly

irrelevant and the matter is to be decided only on the plaint

averments. These principles have been reiterated in

Raptakos Brett & Co. Ltd. v. Ganesh Property and Mayar

(H.K.) Ltd. v. Vessel M.V. Fortune Express.”

15. The High Court has adverted to the case of Church of

Christ Charitable Trust and Educat ional Charitable

Society (supra), which had occasion to consider the

correctness of the view taken by the High Court in ordering

rejection of the plaint in part, against one defendant, on the

ground that it did not disclose any cause of action qua that

defendant. The High Court has also noted the decision relied

upon by the contesting respondents in the case of Mayur

(H.K.) Ltd. and Ors. (supra), which has restated the settled

legal position about the scope of power of the Court to reject

the plaint under Order VII Rule 11(d) of CPC.

18

16. 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).

17. 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,

19

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 20

th 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.

18. Accordingly, this appeal succeeds and is allowed in the

above terms, with no order as to costs.

.………………………….CJI.

(Dipak Misra)

…………………………..….J.

(A.M. Khanwilkar)

…………………………..….J.

(Dr. D.Y. Chandrachud)

New Delhi;

April 10, 2018.