w w w . L a w y e r S e r v i c e s . i n



Metropoli Overseas Limited v/s H.S. Deekshit and Others.

    CRP No. 307 of 2020 (IO)

    Decided On, 14 September 2021

    At, High Court Of Karnataka At Bengaluru

    By, THE HONORABLE JUSTICE: SURAJ GOVINDARAJ
    By, J.

    For Petitioner: K.G. Raghavan, Senior Counsel for Srinivasa T. Gowda, Advocate And For Respondents: S.N. Aswathnarayana and C. Shankara Reddy, Advocates



Judgment Text

1. The petitioner - Defendant No. 3 is before this Court seeking for setting aside the order dated 23.10.2020 passed in O.S. No. 237/2020 passed by the Additional Senior Civil Judge at Nelamangala dismissing the application in I.A. No. III filed under Order VII Rule 11(a) and (d) read with Section 151 of the Civil Procedure Code filed by the defendant No. 3 therein, who is the petitioner herein.

2. The plaint in O.S. No. 237/2020 has been filed seeking for the following reliefs:

"A]. To pass the judgment and decree of partition directing the defendants to effect partition out of the suit schedule property by meets and bounds with the separate possession to the extent of 1/3rd share each plaintiff, in all to the extent of 2/3rd share together out of the suit schedule property by meets and bounds.

B]. To pass the judgment and decree of declaration to declare that the below mentioned documents are not binding upon the shares of the plaintiffs out of the suit schedule property.

1) The agreement to sell dated 3/2/1995 registered in the office of the sub-registrar at Nelamangala as document No. 2282/1994 in favour of the defendant No. 3 alleged to be executed by the defendant No. 1 and 2.

2) The GPA dated 15/2/1995 registered in the office of the sub-registrar at Nelamangala as document No. 102/1995 alleged to have been executed by the defendants No. 1 and 2 in respect of the suit property in favour of the defendant No. 3.

3) The sale deed dated 20/7/1995 as document No. 803/1995-96,

4) The sale deed dated 20/7/1995 as document No. 807/1995-96,

5) The sale deed dated 19/7/1995 as document No. 846/1995-96,

6) The sale deed dated 19/7/1995 as document No. 850/1995-96,

7) The sale deed dated 19/7/1995 as document No. 924/1995-96.

The above referred 5 sale deeds were registered in the office of the sub registrar at Nelamangala executed by Pawan kumar Dalmia in favour of the defendant No. 3 in respect of the suit schedule property.

C]. To pass the judgment and decree of perpetual injunction restraining the defendant No. 3 its agents, servants, henchmen or anybody claiming through it or under it from in any way interfering with the peaceful possession and enjoyment of the suit schedule property permanently.

D] For cost of the suit and to pass any other relief/reliefs which this Hon'ble Court deems it fit to grant under the circumstances of the case"

3. In the application under Order VII Rule 11(a) and (d) of the Civil Procedure Code (CPC), it was contended that:

3.1. Even according to the plaint, the relief sought for as regards declaration relating to the sale deeds of the year 1995 to be not binding on the plaintiffs, the suit is barred by limitation as the same is filed in the year 2020;

3.2. Even a perusal of the cause title to the suit in O.S. No. 227/2020 indicates that the plaintiffs and defendant Nos. 1 and 2 were residing under the same roof. Therefore, the plaintiffs were aware of the transaction executed by the defendant Nos. 1 and 2 and as such, apart from the suit being an abuse of the process of the Court, the suit is barred by limitation since the plaintiffs were aware of the execution of the sale deeds;

3.3. Apart therefrom, there are various other allegations made as regards subsequent to the execution of sale deeds, confirmation deeds have been executed by defendant Nos. 1 and 2 and their father and as regards the sale deed executed in favour of defendant No. 3, the permission/sanction was obtained by defendant No. 3 etc.

4. The said application came to be opposed by the plaintiff by filing objections contending that

4.1. The address of respondent No. 3 is not proper, that defendants No. 1 and 2 are not parties to the agreement to sell.

4.2. The plaintiffs being sons of defendant No. 1 are entitled for the shares as claimed in the suit.

4.3. There is no consideration which is passed under the sale deed. Neither the agreement of sale nor the sale deeds confer any right on the defendant No. 3.

4.4. Article 60 of the Limitation Act is not applicable since the same relates to the transfer of property belonging to a minor and the minor being a party to the sale deed. In the present case the plaintiffs though being minors were not parties to the sale deed, the right claimed in the suit is as regards the coparcenary rights of the plaintiffs. Hence, Article 60 of the Limitation Act was not applicable. It is in fact Article 65 which is applicable.

5. After hearing the parties, the trial Court by way of the impugned order dated 23.10.2020, dismissed the application on the ground that:

5.1. The suit property is the ancestral joint family property;

5.2. The plaintiffs and defendant No. 1 are in joint possession and enjoyment of the suit property;

5.3. There is an allegation made that the documents in favour of defendant No. 3 have been fraudulently created;

5.4. The transaction related to minor's exclusive property and therefore, all these aspects would have to be adjudicated during the course of the trial;

5.5. The plaintiffs having pleaded the cause of action, whether the same is correct or not would have to be adjudicated during the course of trial. Whether the plaint is barred by limitation would also have to be adjudicated after trial.

6. Being aggrieved by the said order, the petitioner-defendant No. 3 is before this Court.

7. Sri K.G. Raghavan, learned senior counsel appearing for the petitioner would contend that:

7.1. The Trial Court has misapplied itself. The Trial Court ought to have applied the principle of limitation in a proper and correct perspective;

7.2. The suit has been filed for the relief of declaration that the five sale deeds (two of them dated 20.07.1995 and three of them dated 19.07.1995) are not binding upon the plaintiffs, 25 years after the execution and registration of the said sale deeds. Therefore, the registration of the sale deeds amounted to constructive knowledge to one and all and plaintiffs are deemed to have knowledge of the same.

7.3. If at all the plaintiffs were aggrieved by the said sale deeds, they ought to have challenged the same within a period of 12 years from the date of execution of the sale deeds or within a period of three years from the date the plaintiffs attained majority, the same having occurred much prior to the date of filing of the suit, the suit filed after the lapse of the said period is barred by limitation, which is ex facie revealed from a reading of the plaint. On this ground itself, the plaint ought to have been rejected.

7.4. The plaint has been filed by way of clever drafting so as to cloud the real cause of action by giving a convoluted date for cause of action being the filing of the suit in O.S. No. 508/2018 by defendant No. 3 in O.S. No. 237/2020 against the plaintiffs and defendant Nos. 1 and 2 therein seeking for an injunction restraining them from interfering with the possession of the defendant No. 3.

7.5. The law of limitation has to be strictly applied. There cannot be equities claimed when any particular relief is barred by limitation. If strictly applied, the suit being ex facie barred by limitation, there is no need for any trial to be conducted since there is no disputed question inasmuch as the sale deeds were registered on 19.07.1995 and 20.07.1995 which is clearly 25 years prior to filing of the suit. Constructive knowledge is required to be attributed to the date of registration itself which date would indicate commencement of limitation and there will be no trial required to ascertain the said date.

8. In this regard he relies on the following decisions:

8.1. Madnuri Sri Rama Chandra Murthy v. Syed Jalal [ (2017) 13 SCC 174, more particularly para 7 to contend that if the reading of the plaint on its face discloses that there is no cause of action or that it is barred by any law, the plaint is required to be rejected. Clever drafting of the plaint to create an illusion of cause of action should not come in the way of the Court to nip at the bud at the earliest such bogus litigation. Para 7 is reproduced hereunder for easy reference:

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.

8.2. Sopan Sudhdeo Sable and others v. Assistant Charity Commissioner and others [ (2004) 3 SCC 137. By relying upon the aforesaid decision, he contends that real object of Order VII Rule 11 of CPC is to keep out of Court irresponsible lawsuits/criminal law proceedings. It is the duty of the Court to reject the plaint in any suit which does not make out any cause of action or which ex-facie appears to be barred by limitation on a reading of the plaint. Paragraphs 15, 17 and 18 are reproduced hereunder for easy reference:

15. There cannot be any compartmentalisation, dissection, segregation and inversions of the language of various paragraphs in the plaint. If such a course is adopted it would run counter to the cardinal canon of interpretation according to which a pleading has to be read as a whole to ascertain its true import. It is not permissible to cull out a sentence or a passage and to read it out of the context in isolation. Although it is the substance and not merely the form that has to be looked into, the pleading has to be construed as it stands without addition or subtraction or words or change of its apparent grammatical sense. The intention of the party concerned is to be gathered primarily from the tenor and terms of his pleadings taken as a whole. At the same time it should be borne in mind that no pedantic approach should be adopted to defeat justice on hair-splitting technicalities.

17. Keeping in view the aforesaid principles, the reliefs sought for in the suit as quoted supra have to be considered. The real object of Order 7 Rule 11 of the Code is to keep out of courts irresponsible law suits. Therefore, Order 10 of the Code is a tool in the hands of the courts by resorting to which and by a searching examination of the party, in case the Court is prima facie of the view that the suit is an abuse of the process of the Court, in the sense that it is a bogus and irresponsible litigation, the jurisdiction under Order 7 Rule 11 of the Code can be exercised.

18. As noted supra, Order 7 Rule 11does not justify rejection of any particular portion of the plaint. Order 6 Rule 16 of the Code is relevant in this regard. It deals with "striking out pleadings". It has three clauses permitting the Court at any stage of the proceeding to strike out or amend any matter in any pleading i.e. (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.

8.3. Raghwendra Sharan Singh v. Ram Prasanna Sing (Dead) by LRs ) more particularly paragraphs 15, 19, 29, 30 and 31 which are reproduced hereunder for easy reference:

15. It is vehemently submitted by the learned counsel appearing on behalf of the original plaintiff that the question of limitation is a mixed question of law and facts and for which the evidence is required to be led by the parties and therefore both, the High Court as well as the learned trial court, rightly refused to reject the plaint at the threshold and in exercise of powers under Order 7 Rule 11 CPC.

19. 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 6-3-1981 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 6-3-1981 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 6-3-1981 is not binding upon the plaintiff.

C. That the possession of the plaintiff be continued over the suit property 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 ad interim 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 the Court deems fit and proper, be awarded to the plaintiff and against the defendant."

29. At this stage, it is required to be noted that, as such, the plaintiff has never prayed for any declaration to set aside the gift deed. We are of the opinion that such a prayer is not asked cleverly. If such a prayer would have been asked, in that case, the suit can be said to be clearly barred by limitation considering Article 59 of the Limitation Act and, therefore, only a declaration is sought to get out of the provisions of the Limitation Act, more particularly, Article 59 of the Limitation Act. The aforesaid aspect has also not been considered by the High Court as well as the learned trial court.

30. Now, so far as the application on behalf of the original plaintiff and even the observations made by the learned trial court as well as the High Court that the question with respect to the limitation is a mixed question of law and facts, which can be decided only after the parties lead the evidence, is concerned, as observed and held by this Court in Sham Lal, considering the averments in the plaint if it is found that the suit is clearly barred by law of limitation, the same can be rejected in exercise of powers under Order 7 Rule 11(d) CPC.

31. In view of the above and for the reasons stated above, we are of the opinion that both the High Court as well as the learned trial court have erred in not exercising the powers under Order 7 Rule 11 CPC and in not rejecting the plaint in exercise of powers under Order 7 Rule 11 CPC. For the reasons stated above, the impugned judgment and order passed by the High Court as well as the trial court cannot be sustained and the same deserve to be quashed and set aside. Consequently, the impugned judgment and order passed by the High Court dated 12-3-2013 as well as the order passed by the Munsif, Danapur rejecting Order 7 Rule 11 application filed by the original defendant are hereby set aside. Consequently, the application submitted by the appellant herein-original defendant to reject the plaint under Order 7 Rule 11 CPC is hereby allowed and the plaint, being Title Suit No. 19 of 2003 is hereby rejected. The present appeal is allowed accordingly in terms of the above. No costs.

8.4. By relying upon the above, he contends that trial is not required to be conducted to determine whether a suit is barred by law or not. In every case, the law of limitation is not a mixed question of law and facts. Where a plaint ex-facie indicates that it is barred by law, the Court ought to exercise power under Order 7 Rule 11 and reject the plaint.

8.5. M/s. Durga Projects and Infrastructure Pvt. Ltd., Bengaluru v. Sri S. Rajagopala Reddy and others [(2019) 04 KCCR 3891] more particularly para 8 which is reproduced hereunder for easy reference;

8. As regards limitation, in Para 38 of the plaint it is clearly stated that the cause of action arose on 18.03.2005, 29.03.2007 and 15.06.2016. 18.03.2005 is the date when the first defendant executed a sale deed in favour of third defendant. That means, the cause of action first arose on 18.03.2005. This is a suit for declaration and possession. Just because possession is claimed, 12 years period of limitation is not available. Unless the sale deeds are set aside and the plaintiffs' title is declared, they are not entitled to possession. Declaration is the main relief in the circumstances pleaded. Article 58 of the Limitation Act is applicable and therefore the limitation is to be reckoned from the first date; the subsequent dates pleaded do not extend the limitation period. In the case of Khatri Hotels Private Limited v. Union Of India [(2011) 9 SCC 126.], it is held as below.

"30. While enacting Article 58 of the 1963 Act, the legislature has designedly made a departure from the language of Article 120 of the 1908 Act. The word 'first' has been used between the words 'sue' and 'accrued'. This 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. To put it differently, successive violation of the right will not give rise to fresh cause and the suit will be liable to be dismissed if it is beyond the period of limitation counted from the day when the right to sue first accrued".

8.6. By placing reliance on the above, he submits that first cause of action had been shown to be 18.03.2005 and last cause of action was shown to be 15.06.2016, it does not mean that last cause of action would be the cause of action but it is first cause of action. Limitation period would commence running from the first cause of action. He further submits that once limitation period starts running, it cannot be stopped by any force except by force of law. The relief of Declaration that the sale deeds are not binding is the primary relief, in as much as if that relief were not to be granted relief of partition and separate possession cannot be granted.

8.7. In the present case, the limitation started running on the date of execution of the sale deed dated 19.07.1995 and 20.07.1995 from then on it has not stopped. There is no legal force which has stopped the limitation. Therefore, by applying Article 58 of the Limitation Act, he invokes the concept of "right to sue first accruing" to contend that the right to sue having first accrued on 19.07.1995 suit filed in the year 2020 is barred by limitation.

8.8. In this regard he relied upon the decision of the Apex Court in Khatri Hotels Pvt. Ltd. And another v. Union of India and another [ (2011) 9 SCC 126, more particularly para 30 thereof which is reproduced hereunder for easy reference:

30. While enacting Article 58 of the 1963 Act, the legislature has designedly made a departure from the language of Article 120 of the 1908 Act. The word "first" has been used between the words "sue" and "accrued". This 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. To put it differently, successive violation of the right will not give rise to fresh cause and the suit will be liable to be dismissed if it is beyond the period of limitation counted from the day when the right to sue first accrued.

8.9. On the basis of the above Judgments, he submits that the plaint ought to have been rejected by the trial Court.

9. Per contra, Sri Aswathnarayana, learned counsel appearing for respondents No. 1 and 2 who are plaintiffs in the trial Court would contend that:

9.1. The plaintiffs having interest in the suit schedule property, the property being ancestral property of the family having been acquired by the grandfather of the plaintiff viz., Lingappa who had a son Akkannappa who in turn had two sons viz., A. Lingappa and A. Byralingappa.

9.2. A. Lingappa has gone out of the family by taking his share out of the family of late Akkannappa, hence, he is not concerned with the suit. A. Byralingappa had two sons viz., H.B. Shivaprasad and H.B. Ananda, defendants No. 1 and 2 in the suit.

9.3. The plaintiffs are the sons of first defendant H.B. Shivaprasad. There was a division between A. Byralingappa with his first son viz., defendant No. 1 therein, whereunder the suit schedule property was given to the first defendant exclusively.

9.4. Defendant No. 1 wanted to develop the said property to augment the family income. He wanted to start a brick manufacturing unit on the suit schedule property after obtaining conversion of the land from agricultural to industrial. Though defendant No. 1 wanted to start brick business, the same was not started. The joint family continued even after the partition effected between A. Byralingappa and defendant No. 1. Defendant No. 2 has no interest in the property. Defendant No. 1 was handling the affairs of the family, the plaintiffs never enquired about any family affairs nor defendant No. 1 was revealing the affairs of the family to the plaintiffs.

9.5. During the second week of January 2019, the plaintiffs received suit summons in O.S. No. 508/2018 and entered their appearance on 21.01.2019. Plaintiffs intimated same to defendants No. 1 and 2, who also informed that even they received suit summons as regards the above suit which was filed by defendant No. 3 seeking for permanent injunction restraining the plaintiffs and defendants No. 1 and 2 from interfering with the possession of the suit schedule property.

9.6. In the suit defendant No. 3 had claimed to be the owner of the property. Hence plaintiffs enquired with defendants No. 1 and 2 about the same when they expressed their innocence and denied the execution of any document produced in the suit.

9.7. It is in this background that the suit in O.S. No. 237/2020 had been filed seeking for the aforesaid reliefs alleging that the documents relied upon by the defendant No. 3 are fabricated, there is no sale agreement or sale deeds executed by defendants No. 1 and 2 in favour of defendant No. 3, the sale deeds are not binding on the plaintiffs and that the plaintiffs are entitled for partition of the suit schedule property.

9.8. The applicable provision of the Limitation Act in the present circumstances is Article 110 and not 58 or 109 and in terms of Article 110 the period of limitation is 12 years from the time when the plaintiffs were excluded from the joint family. In the present case, the exclusion came to the knowledge of the plaintiffs only when summons were received in January 2019, therefore, the suit is within time.

9.9. Be that as it may, he contends that even if there are any issues relating thereto they are disputed questions which are mixed question of facts and law which would have to be adjudicated only after trial. In support of the above contentions, he places reliance on the following decisions:

9.9.1. Liverpool & London S.P. & I Association Ltd. v. M.V. Sea Success I and Another [(2004) 9 SCC 512-paragraphs 139, 151, 152 and 154 reproduced hereunder for easy reference;

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.

151. In ascertaining whether the plaint shows a cause of action, the Court is not required to make an elaborate enquiry into doubtful or complicated questions of law or fact. By the statute the jurisdiction of the Court is restricted to ascertaining whether on the allegations a cause of action is shown. In Vijai Pratap Singh v. Dukh Haran Nath Singh this Court held: (AIR pp. 943-44, para 9)

"By the express terms of Rule 5 clause (d), the Court is concerned to ascertain whether the allegations made in the petition show a cause of action. The Court has not to see whether the claim made by the petitioner is likely to succeed: it has merely to satisfy itself that the allegations made in the petition, if accepted as true, would entitle the petitioner to the relief he claims. If accepting those allegations as true no case is made out for granting relief no cause of action would be shown and the petition must be rejected. But in ascertaining whether the petition shows a cause of action the Court does not enter upon a trial of the issues affecting the merits of the claim made by the petitioner. It cannot take into consideration the defences which the defendant may raise upon the merits; nor is the Court competent to make an elaborate enquiry into doubtful or complicated questions of law or fact. If the allegations in the petition, prima facie, show a cause of action, the Court cannot embark upon an enquiry whether the allegations are true in fact, or whether the petitioner will succeed in the claims made by him."

152. So long as the claim discloses some cause of action or raises some questions fit to be decided by a judge, the mere fact that the case is weak and not likely to succeed is no ground for striking it out. The purported failure of the pleadings to disclose a cause of action is distinct from the absence of full particulars.

154. The approach of the High Court, in our considered opinion, is not correct. For the purpose of rejecting a plaint it is not necessary to consider whether the averments made in the plaint prove the factum that Defendant 1 Sea Success I is a sister ship of Sea Glory and Sea Ranger or the said two ships are beneficially owned by Defendant 2. The reasons which have been assigned in support of the said aforementioned finding that the ship is a valuable commercial chattel and her arrest undeservingly prejudices third parties as well as affects the interest of the owner and others is a question which must be gone into when passing a final order as regard interim arrest of the ship or otherwise. For the aforementioned purpose the Vessel herein could file an application for vacation of stay. While considering such an application, the Court was entitled to consider not only a prima facie case but also the elements of balance of convenience and irreparable injury involved in the matter. In such a situation and particularly when both the parties disclose their documents which are in their possession, the Court would be in a position to ascertain even prima facie as to whether the Club has been able to make out that Sea Glory and Sea Ranger are sister vessels of the "Vessel".

9.9.2. By relying upon the decision he submits that it is only the averments made in the plaint which are required to be considered. The Court cannot make elaborate enquiry into doubtful or complicated questions of fact. The same would amount to prejudging the matter. Therefore, he submits that the trial Court has held that trial has to be held.

9.9.3. Ram Prakash Gupta vs. Rajiv Kumar Gupta and others [(2007) 10 SCC 59]-paragraphs 17, 20, 21 and 22 are reproduced hereunder:

17. It is trite law that not any particular plea has to be considered, and the whole plaint has to be read. As was observed by this Court in Roop Lal Sathi v. Nachhattar Singh Gill, only a part of the plaint cannot be rejected and if no cause of action is disclosed, the plaint as a whole must be rejected.

20. For our purpose, Clause (d) is relevant. It makes it clear that if the plaint does not contain necessary averments relating to limitation, the same is liable to be rejected. For the said purpose, it is the duty of the person who files such an application to satisfy the Court that the plaint does not disclose how the same is in time. In order to answer the said question, it is incumbent on the part of the Court to verify the entire plaint. Order 7 Rule 12 mandates where a plaint is rejected, the Court has to record the order to that effect with the reasons for such order. Inasmuch as the learned trial Judge rejected the plaint only on the ground of limitation, it is useful to refer the averments relating to the same. Learned counsel appearing for the appellant, by taking us through the entire plaint, submitted that inasmuch as sufficient materials are available in the plaint, it is proper on the part of the trial court to decide the suit on merits and not justified in rejecting the plaint that too after the evidence of the plaintiff. In the light of the assertion of the counsel for the appellant, we carefully verified the plaint averments. In Para 5, the appellant-plaintiff has specifically stated that he is a handicapped person from the beginning and it is difficult for him to move about freely. The following averments in the plaint are relevant to answer the point determined in this appeal:

"(a) That without any intimation to the plaintiff, said Rajeev Kumar Gupta got decreed the said suit. It seems that the said Rajeev Kumar Gupta in collusion with his father Shri Inder Prakash Gupta produced someone else under the pretext of Shri Ram Prakash Gupta, the present plaintiff in the Court and got the said decree in his favour on the said false pretext by playing a fraud upon the plaintiff as well as upon the Court. The plaintiff never appeared in the abovesaid cases before the High Court nor ever made any statement to the effect that the suit of the plaintiff may/might be decreed and as such the judgment and decree dated 5-2-1976 passed in the abovesaid Suit No. 183 of 1974 entitled as Rajeev Kumar v. Ram Prakash Gupta is totally false, baseless, nullity and void in the eye of the law and is not at all binding upon the plaintiff and the same has been procured by fraud and misrepresentation as submitted above.

(b) That the plaintiff came to know for the first time about the passing of the abovesaid decree in favour of the said Rajeev Kumar Gupta by the High Court of Delhi, in the abovesaid Suit No. 183 of 1974 in the month of October 1986. It is submitted that Shri Inder Prakash Gupta, the elder brother of the plaintiff died at Delhi in the month of September 1986 and after his death Shri Rajeev Kumar Gupta asked the plaintiff to give first floor portion of the above Building No. 8, Nizamuddin Basti to them and alleged that there was a High Court judgment in their favour. However, no particulars of the said judgment were given at that time by any of the defendants, and therefore, the plaintiff could not take any action at that time.

(c) That the said tenant M/s. Aseema Architect also stopped payment of rent from the year 1985 and perhaps on the instructions or at the instance of the said Inder Prakash Gupta, the elder brother of the plaintiff, he deposited the rent from July 1985 to March 1986 in the Court of Rent Controller, Delhi. However, after the death of Shri Inder Prakash Gupta, the abovesaid tenant refused to pay the rent and ultimately he filed an interpleader suit being Suit No. 424 of 1989 entitled as Aseema Architect v. Ram Prakash alleging therein that there is a bona fide dispute about the person(s) to whom the rent is payable. In fact, the said suit was and is not maintainable because admittedly the said tenant took the abovesaid premises from the plaintiff and he is estopped from denying the title of the plaintiff under Section 116 of the Evidence Act and for other reasons also.

(d) That in any case, it is submitted that as on one of the dates, the plaintiff could not appear because of his illness, the learned trial court proceeded ex parte and decreed the suit ex parte in favour of the said Shri Rajeev Kumar Gupta. It is submitted that the full details of the abovesaid judgment were given by the said Rajeev Kumar in the said Court as the copy of the said judgment of the High Court was filed therein and thereafter taking the details from the same, the High Court's file was inspected and the mala fide motives and designs of the defendants came to light and, therefore, the present suit is being filed at the earliest possible challenging the said judgment and the decree of the High Court of Delhi."

21. As observed earlier, before passing an order in an application filed for rejection of the plaint under Order 7 Rule 11(d), it is but proper to verify the entire plaint averments. The abovementioned materials clearly show that the decree passed in Suit No. 183 of 1974 came to the knowledge of the plaintiff in the year 1986, when Suit No. 424 of 1989 titled Assema Architect v. Ram Prakash was filed in which a copy of the earlier decree was placed on record and thereafter he took steps at the earliest and filed the suit for declaration and in the alternative for possession. It is not in dispute that as per Article 59 of the Limitation Act, 1963, a suit ought to have been filed within a period of three years from the date of the knowledge. The knowledge mentioned in the plaint cannot be termed as inadequate and incomplete as observed by the High Court. While deciding the application under Order 7 Rule 11, few lines or passage should not be read in isolation and the pleadings have to be read as a whole to ascertain its true import. We are of the view that both the trial court as well as the High Court failed to advert to the relevant averments as stated in the plaint.

22. It is also relevant to mention that after filing of the written statement, framing of the issues including on limitation, evidence was led, the plaintiff was cross-examined, thereafter before conclusion of the trial, the application under Order 7 Rule 11 was filed for rejection of the plaint. It is also pertinent to mention that there was not even a suggestion to the appellant-plaintiff to the effect that the suit filed by him is barred by limitation.

9.9.4. Relying upon the aforesaid decision he contends that few lines in the plaint cannot be read in isolation. The entire plaint would have to be read in totality.

9.9.5. Saleem Bhai and others v. State of Maharashtra and others [ (2003) 1 SCC 557, more particularly para 9 thereof which is reproduced hereunder:

"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 touching the exercise of jurisdiction by the trial court. The order, therefore, suffers from non-exercising of the jurisdiction vested in the Court as well as procedural irregularity. The High Court, however, did not advert to these aspects".

9.9.6. Swamy Atmananda and others v. Sri Ramakrishna Tapovanam and others [(2005) 10 SCC 51]-para 24 thereof which is reproduced hereunder:

"24. A cause of action, thus, 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".

9.9.7. C. Natarajan v. Ashim Bai and Another [(2007) 14 SCC 183], relevant paragraphs 8, 9 and 19 are reproduced hereunder for easy reference:

8. An application for rejection of the plaint can be filed if the allegations made in the plaint even if given face value and taken to be correct in their entirety appear to be barred by any law. The question as to whether a suit is barred by limitation or not would, therefore, depend upon the facts and circumstances of each case. For the said purpose, only the averments made in the plaint are relevant. At this stage, the Court would not be entitled to consider the case of the defence.

9. Applicability of one or the other provision of the Limitation Act per se cannot be decisive for the purpose of determining the question as to whether the suit is barred under one or the other article contained in the Schedule appended to the Limitation Act.

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 7 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.

9.9.8. Relying on the aforesaid decision, he submits that plaintiffs were not aware of the sale deeds and or defendant No. 3 being in possession of the property. Therefore, these issues have to be decided during the course of trial and an application under Order 7 Rule 11 could not have been pressed into service.

9.9.9. Hardesh Ores (P) Ltd. v. Hede and company [(2007) 5 SCC 614], para 25 reproduced hereunder:

25. The language of Order 7 Rule 11 CPC is quite clear and unambiguous. The plaint can be rejected on the ground of limitation only where the suit appears from the statement in the plaint to be barred by any law. Mr. Nariman did not dispute that "law" within the meaning of clause (d) of Order 7 Rule 11 must include the law of limitation as well. It is well settled that whether a plaint discloses a cause of action 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 whether the averments made in the plaint, if taken to be correct in their entirety, a decree would be passed. The averments made in the plaint as a whole have to be seen to find out whether clause (d) of Rule 11 of Order 7 is applicable. It is not permissible to cull out a sentence or a passage and to read it out of the context in isolation. Although it is the substance and not merely the form that has to be looked into, the pleading has to be construed as it stands without addition or subtraction of words or change of its apparent grammatical sense. As observed earlier, the language of clause (d) is quite clear but if any authority is required, one may usefully refer to the judgments of this Court in Liverpool & London S.P. & I Assn. Ltd. v. M.V. Sea Success I and Popat and Kotecha Property v. State Bank of India Staff Assn.

to contend that issue of limitation would have to be considered by considering all the averments made in the plaint in its entirety and not on the basis of certain isolated averments made therein;

9.9.10. Balsaria Construction (P) Ltd. v. Hanuman Seva Trust and others (2006) 5 SCC 658, more particularly para 8, which is reproduced hereunder to contend that by exercising powers under Order 7 Rule 11(d) of CPC a plaint could not be rejected on the ground of limitation under Order 7 Rule 11(d) since question of limitation is a mixed question of law and fact.

8. After hearing counsel for the parties, going through the plaint, application under Order 7 Rule 11(d) CPC and the judgments of the trial court and the High Court, we are of the opinion that the present suit could not be dismissed as barred by limitation without proper pleadings, framing of an issue of limitation and taking of evidence. Question of limitation is a mixed question of law and fact. Ex facie in the present case on the reading of the plaint it cannot be held that the suit is barred by time. The findings recorded by the High Court touching upon the merits of the dispute are set aside but the conclusion arrived at by the High Court is affirmed. We agree with the view taken by the trial court that a plaint cannot be rejected under Order 7 Rule 11(d) of the Code of Civil Procedure.

9.9.11. Kamala and others v. K.T. Eshwara Sa and others (2008) 12 SCC 661, learned counsel relies on paragraphs 21, 22, 23 which are reproduced hereunder to contend that if an issue on limitation is in dispute, then the trial Court ought not to exercise powers under Order 7 Rule 11 CPC but ought to have framed the preliminary issue in that regard and deal with the same under Order 14 Rule 2 of CPC.

21. Order 7 Rule 11(d) of the Code has limited application. It must be shown that the suit is barred under any law. Such a conclusion must be drawn from the averments made in the plaint. Different clauses in Order 7 Rule 11, in our opinion, should not be mixed up. Whereas in a given case, an application for rejection of the plaint may be filed on more than one ground specified in various sub-clauses thereof, a clear finding to that effect must be arrived at. What would be relevant for invoking clause (d) of Order 7 Rule 11 of the Code are the averments made in the plaint. For that purpose, there cannot be any addition or subtraction. Absence of jurisdiction on the part of a court can be invoked at different stages and under different provisions of the Code. Order 7 Rule 11 of the Code is one, Order 14 Rule 2 is another.

22. For the purpose of invoking Order 7 Rule 11(d) of the Code, no amount of evidence can be looked into. The issues on merit of the matter which may arise between the parties would not be within the realm of the Court at that stage. All issues shall not be the subject-matter of an order under the said provision.

23. The principles of res judicata, when attracted, would bar another suit in view of Section 12 of the Code. The question involving a mixed question of law and fact which may require not only examination of the plaint but also other evidence and the order passed in the earlier suit may be taken up either as a preliminary issue or at the final hearing, but, the said question cannot be determined at that stage.

9.9.12. In Urvashiben and another v. Krishnakant Manuprasad Trivedi [(2019) 13 SCC 372] para 15 and 20 to contend that the aspect of knowledge of a particular fact requires a trial and could not be presumed.

15. It is fairly well settled that, so far as the issue of limitation is concerned, it is a mixed question of fact and law. It is true that limitation can be the ground for rejection of plaint in exercise of powers under Order 7 Rule 11(d) CPC. Equally, it is well settled that for the purpose of deciding application filed under Order 7 Rule 11 only averments stated in the plaint alone can be looked into, merits and demerits of the matter and the allegations by the parties cannot be gone into. Article 54 of the Limitation Act, 1963 prescribes the limitation of three years, for suits for specific performance. The said Article reads as under:



From a reading of the aforesaid Article, it is clear that when the date is fixed for performance, limitation is three years from such date. If no such date is fixed, the period of three years is to be computed from the date when the plaintiff, has notice of refusal. When rejection of plaint is sought in an application filed under Order 7 Rule 11, same is to be considered from the facts of each case, looking at the averments made in the plaint, for the purpose of adjudicating such application.

20. By applying the aforesaid principles in the judgments relied on by Shri Dushyant A. Dave, learned Senior Counsel appearing for the respondent, we are of the considered view that merits and demerits of the matter cannot be gone into at this stage, while deciding an application filed under Order 7 Rule 11 CPC. It is fairly well settled that at this stage only averments in the plaint are to be looked into and from a reading of the averments in the plaint in the case on hand, it cannot be said that the suit is barred by limitation. The issue as to when the plaintiff had noticed refusal, is an issue which can be adjudicated after trial. Even assuming that there is inordinate delay and laches on the part of the plaintiff, same cannot be a ground for rejection of plaint under Order 7 Rule 11(d) CPC.

10. In rejoinder, Sri K.G. Raghavan, learned Senior counsel would submit that:

10.1. There are no equities which could be claimed in respect of limitation. The law of limitation though may be considered to be harsh would have to be applied in all severity since it is founded on public policy.

10.2. In this regard, he relies on the decision of the Apex Court in Basawaraj and another v. Special Land Acquisition Officer [ (2013) 14 SCC 81], more particularly para 12 and 13 thereof extracted hereunder for easy reference:

12. It is a settled legal proposition that law of limitation may harshly affect a particular party but it has to be applied with all its rigour when the statute so prescribes. The court has no power to extend the period of limitation on equitable grounds. "A result flowing from a statutory provision is never an evil. A court has no power to ignore that provision to relieve what it considers a distress resulting from its operation." The statutory provision may cause hardship or inconvenience to a particular party but the court has no choice but to enforce it giving full effect to the same. The legal maxim dura lex sed lex which means "the law is hard but it is the law", stands attracted in such a situation. It has consistently been held that, "inconvenience is not" a decisive factor to be considered while interpreting a statute.

13. The statute of limitation is founded on public policy, its aim being to secure peace in the community, to suppress fraud and perjury, to quicken diligence and to prevent oppression. It seeks to bury all acts of the past which have not been agitated unexplainably and have from lapse of time become stale. According to Halsbury's Laws of England, Vol. 28, p. 266:

"605. Policy of the Limitation Acts.--The courts have expressed at least three differing reasons supporting the existence of statutes of limitations namely, (1) that long dormant claims have more of cruelty than justice in them, (2) that a defendant might have lost the evidence to disprove a stale claim, and (3) that persons with good causes of actions should pursue them with reasonable diligence."

An unlimited limitation would lead to a sense of insecurity and uncertainty, and therefore, limitation prevents disturbance or deprivation of what may have been acquired in equity and justice by long enjoyment or what may have been lost by a party's own inaction, negligence or laches. (See Popat and Kotecha Property v. SBI Staff Assn., Rajender Singh v. Santa Singh and Pundlik Jalam Patil v. Jalgaon Medium Project).

10.3. He submits that the main prayer in the present suit is one for declaration of the sale deeds to be invalid and not binding, without such a relief being granted, the suit for partition cannot be decreed. He submits though it may appear to be a chicken and egg story, in the present case, without a declaration that the sale deed is invalid, the prayer for partition cannot be considered.

10.4. By relying upon the decision of the Apex Court in Suhrid Singh Alias Sardool Singh v. Randhir Singh and others [(2010) 12 SCC 112], he contends that when a deed is invalid or non-est or illegal, it would be required for a person who claims as such to seek for a declaration in respect thereof. When a person is a party to it, he can seek for cancellation. When a person is not a party, he has to seek for declaration that it is not binding on him. Without declaration, relief of partition cannot be granted. In this regard he relies on paras 4 and 7 of the Judgment which are reproduced hereunder for easy reference:

4. The limited question that arises for consideration is what is the court fee payable in regard to the prayer for a declaration that the sale deeds were void and not "binding on the coparcenary", and for the consequential relief of joint possession and injunction.

7. Where the executant of a deed wants it to be annulled, he has to seek cancellation of the deed. But if a non-executant seeks annulment of a deed, he has to seek a declaration that the deed is invalid, or non est, or illegal or that it is not binding on him. The difference between a prayer for cancellation and declaration in regard to a deed of transfer/conveyance, can be brought out by the following illustration relating to A and B, two brothers. A executes a sale deed in favour of C. Subsequently A wants to avoid the sale. A has to sue for cancellation of the deed. On the other hand, if B, who is not the executant of the deed, wants to avoid it, he has to sue for a declaration that the deed executed by A is invalid/void and non est/illegal and he is not bound by it. In essence both may be suing to have the deed set aside or declared as non-binding. But the form is different and court fee is also different. If A, the executant of the deed, seeks cancellation of the deed, he has to pay ad valorem court fee on the consideration stated in the sale deed. If B, who is a non-executant, is in possession and sues for a declaration that the deed is null or void and does not bind him or his share, he has to merely pay a fixed court fee of Rs. 19.50 under Article 17(iii) of the Second Schedule of the Act. But if B, a non-executant, is not in possession, and he seeks not only a declaration that the sale deed is invalid, but also the consequential relief of possession, he has to pay an ad valorem court fee as provided under Section 7(iv)(c) of the Act.

10.5. He relies upon the decision in Prem Singh and others v. Birbal and others [ (2006) 5 SCC 353, more particularly paras 11, 27 and 28 which are reproduced hereunder for easy reference:

"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.

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 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."

10.6. By relying upon the above, he submits that there is a presumption that a registered document is validly executed and prima facie valid in law. If a document has been executed during minority of a person, the only option is for him to have challenged the same within a period of 12 years of the document or within three years of attaining majority. This having not been done in the present case, the suit is barred by law of limitation and on this ground he submits that these aspects ought to have been considered by the trial Court when a frivolous and irresponsible litigation is filed.

11. Sri Shankar Reddy, learned Counsel for the Defendant No. 1 and 2 i.e., father and uncle of Plaintiffs adopts the arguments of Sri S.N. Aswathanarayana, learned counsel for Plaintiffs. He further submits that prior to the suit filed by the Plaintiffs, Defendant No. 1 and 2 have also independently filed a suit challenging the sale deed executed in favour of the petitioner Defendant No. 3. As such, pending the suit application under Order 7 Rule 11 has been rightly rejected.

12. Heard Sri K.G. Raghavan, learned Senior counsel instructed by Sri Srinivasa Gowda, learned Counsel for the petitioner, Sri S.N. Ashwathanarayana, learned Counsel for the respondents No. 1 and 2 and Sri Shankar Reedy, learned Counsel for the respondents No. 3 and 4.

13. The points that would arise for determination by this Court are:

i) Whether a plaint can be rejected under Order 7 Rule 11(d) of CPC on the ground of the suit being ex-facie barred by limitation or in all cases limitation would be a mixed question of law and fact requiring trial

ii) Whether registration of a sale deed in respect of alleged joint family property would amount to constructive notice to all members of the joint family

iii) Whether in a suit for partition and declaration that certain sale deeds are not binding would the main relief be a declaration or partition

iv) Would the limitation period for such a suit be under Article 109 or 110 of the Limitation Act and when would the period for limitation starts running

v) Whether the order passed by the trial Court requires any interference

vi) What Order

14. I answer the above points as under:

15. ANSWER TO POINT No. 1: Whether a plaint can be rejected under Order 7 Rule 11(d) of CPC on the ground of the suit being ex-facie barred by limitation or in all cases limitation would be a mixed question of law and fact requiring trial

15.1. Extensive arguments have been advanced by the counsels and several citations have been relied upon. It is trite law that generally limitation is a mixed question of both facts and law and that the Apex Court and this Court have in catena of cases held that limitation per se cannot be a ground to exercise powers under Order 7 Rule 11 of CPC.

15.2. Having said so, the Apex Court has also held in Hardesh Ores (P) Ltd's case (supra) that law within the meaning of clause (d) of Order 7 Rule 11 of CPC must include law of limitation as well. The Apex Court in Balasaria Construction (P) Ltd. case has held that since ex-facie the plaint could not be said to be barred by time, trial was required, thereby implying that if it was ex-facie evident that the suit was barred by limitation, powers under Order VII Rule 11 could be exercised.

15.3. The Apex Court in Sopan Sudhdeo Sable's case [supra] has held that the Court ought to have exercised powers under Order 7 Rule 11 of CPC if the Court is of the opinion that the suit is bogus or irresponsible litigation. The Apex Court in Raghwendra Sharan Singh's case [supra] has also held that if the Courts were to find that the suit is clearly barred by law of limitation, the same could be rejected under Order 7 Rule 11(d) of CPC.

15.4. In view of the above, I answer Point No. 1 by holding that when a meaningful reading of the plaint discloses that suit is ex-facie barred by limitation powers could be exercised under order 7 Rule 11(d) of CPC by the Court concerned to reject the plaint.

15.5. It is only when there are serious disputed questions of fact that powers under Order 7 Rule 11(d) of CPC cannot be exercised for rejection of the plaint on the ground of the suit being barred by limitation.

16. ANSWER TO POINT NO. 2: Whether registration of a sale deed in respect of alleged joint family property would amount to constructive notice to all members of the joint family

16.1. The purpose of registration of sale deed is to put to notice the members of the general public about a particular document having been registered and or a transaction having occurred.

16.2. A registration of a document makes it a public document and such registration is also reflected in the Encumbrance Certificate relating to the said property, thereby indicating that there is an encumbrance created on the property.

16.3. Constructive notice is a notice which treats a person who ought to have known a fact, as if he actually does know it. It is the knowledge which the court imputes to a person upon a legal presumption so strong that it cannot be allowed to be rebutted, that knowledge must have been obtained by the person had he made all the relevant inquiries.

16.4. In terms of Explanation 1 to Section 3 of the Transfer of Property Act, if a transaction relating to the immovable property needs to be effected by a registered instrument, under law, then the registration of the document will be deemed as Constructive Notice. The notice of such instrument will be deemed from the date of registration of such instrument. Section 3 of the Transfer of Property Act is extracted hereunder for easy reference:

3. Interpretation clause:-- In this Act, unless there is something repugnant in the subject or context,--

"immoveable property" does not include standing timber, growing crops or grass;

"instrument" means a non-testamentary instrument;

"attested", in relation to an instrument, means and shall be deemed always to have meant attested by two or more witnesses each of whom has seen the executant sign or affix his mark to the instrument, or has seen some other person sign the instrument in the presence and by the direction of the executant, or has received from the executant a personal acknowledgement of his signature or mark, or of the signature of such other person, and each of whom has signed the instrument in the presence of the executant; but it shall not be necessary that more than one of such witnesses shall have been present at the same time, and no particular form of attestation shall be necessary;

"registered" means registered in any part of the territories to which this Act extends under the laws for the time being in force regulating the registration of documents;

"attached to the earth" means--

(a) rooted in the earth, as in the case of trees and shrubs;

(b) imbedded in the earth, as in the case of walls or buildings; or

(c) attached to what is so imbedded for the permanent beneficial enjoyment of that to which it is attached;

"actionable claim" means a claim to any debt, other than a debt secured by mortgage of immoveable property or by hypothecation or pledge of moveable property, or to any beneficial interest in moveable property not in the possession, either actual or constructive, of the claimant, which the Civil Courts recognise as affording grounds for relief, whether such debt or beneficial interest be existent, accruing, conditional or contingent;

"a person is said to have notice" of a fact when he actually knows that fact, or when, but for willful abstention from an enquiry or search which he ought to have made, or gross negligence, he would have known it.

Explanation I.--Where any transaction relating to immoveable property is required by law to be and has been effected by a registered instrument, any person acquiring such property or any part of, or share or interest in, such property shall be deemed to have notice of such instrument as from the date of registration or, where the property is not all situated in one sub-district, or where the registered instrument has been registered under sub-section (2) of section 30 of the Indian Registration Act, 1908 (16 of 1908), from the earliest date on which any memorandum of such registered instrument has been filed by any Sub-Registrar within whose sub-district any part of the property which is being acquired, or of the property wherein a share or interest is being acquired, is situated:

Provided that--

(1) the instrument has been registered and its registration completed in the manner prescribed by the Indian Registration Act, 1908 (16 of 1908), and the rules made thereunder,

(2) the instrument or memorandum has been duly entered or filed, as the case may be, in books kept under section 51 of that Act, and

(3) the particulars regarding the transaction to which the instrument relates have been correctly entered in the indexes kept under section 55 of that Act.

Explanation II.--Any person acquiring any immovable property or any share or interest in any such property shall be deemed to have notice of the title, if any, of any person who is for the time being in actual possession thereof.

Explanation III.--A person shall be deemed to have had notice of any fact if his agent acquires notice thereof whilst acting on his behalf in the course of business to which that fact is material:

Provided that, if the agent fraudulently conceals the fact, the principal shall not be charged with notice thereof as against any person who was a party to or otherwise cognizant of the fraud.

16.5. In order that registration of an instrument may operate as a notice of its contents, the following three conditions must be satisfied:

16.5.1. The instrument must be compulsorily registrable. Thus, registration is notice only where the instrument is required to be registered compulsorily, and not where the registration is optional.

16.5.2. The registration of the document must be completed in the manner prescribed by the Indian Registration Act.

16.5.3. The instrument (or its memorandum) and the particulars regarding the transaction to which it related must be correctly entered in the registers or books maintained under the Registration Act.

16.6. Such being the case, when a document is registered by following the due formalities, the document becoming a public document which would amount to a constructive notice to one and all about the such registration of the sale deed.

16.7. In Janardhanam Prasad v. Ramdas, (2007) 15 SCC 174 the Hon'ble Supreme Court has held at paragraph 14 as under:

14. The 1st defendant was a friend of the 2nd defendant. Admittedly, the usual stipulations were knowingly not made in the agreement of sale dated 11-4-1983. The 1st defendant may or may not be aware about the agreement entered by and between the respondent herein. But he cannot raise a plea of absence of notice of the deed of sale dated 4-9-1985, which was a registered document. Possession of the suit land by the appellant also stands admitted. Registration of a document as well as possession would constitute notice, as is evident from Section 3 of the Transfer of Property Act, 1882, which is in the following terms:

"'a person is said to have notice' of a fact when he actually knows that fact, or when but for willful abstention from an enquiry or search which he ought to have made, or gross negligence, he would have known it.

Explanation I.--Where any transaction relating to immovable property is required by law to be and has been effected by a registered instrument, any person acquiring such property or any part of, or share or interest in, such property shall be deemed to have notice of such instrument as from the date of registration or, where the property is not all situated in one sub-district, or where the registered instrument has been registered under sub-section (2) of Section 30 of the Indian Registration Act, 1908 (16 of 1908) from the earliest date on which any memorandum of such registered instrument has been filed by any Sub-Registrar within whose sub-district any part of the property which is being acquired, or of the property wherein a share or interest is being acquired, is situated:

Provided that--

(1) the instrument has been registered and its registration completed in the manner prescribed by the Indian Registration Act, 1908 (16 of 1908) and the rules made thereunder,

(2) the instrument or memorandum has been duly entered or filed, as the case may be, in books kept under Section 51 of that Act, and

(3) the particulars regarding the transaction to which the instrument relates have been correctly entered in the indexes kept under Section 55 of that Act.

Explanation II.--Any person acquiring any immovable property or any share or interest in any such property shall be deemed to have notice of the title, if any, of any person who is for the time being in actual possession thereof.

Explanation III.--A person shall be deemed to have had notice of any fact if his agent acquires notice thereof whilst acting on his behalf in the course of business to which that fact is material:

Provided that, if the agent fraudulently conceals the fact, the principal shall not be charged with notice thereof as against any person who was a party to or otherwise cognizant of the fraud."

16.8. The registration of a document before the jurisdictional Sub-Registrar will constitute constructive notice of the same so long as the details relating thereto have been entered in the concerned register and the period of limitation would have to commence from the date of such registration.

16.9. Hence I answer point No. 2 by holding that registration of a sale deed in respect of alleged joint family property would amount to constructive notice to all members of the joint family, if the above conditions are fulfilled.

17. ANSWER TO POINT No. 3: Whether in a suit for partition and declaration that certain sale deeds are not binding would the main relief be a declaration or partition

17.1. Though the plaintiffs have sought for a declaration as a consequential relief in the present case such a relief is not consequential but has to precede the decree for partition since unless such a declaration is granted there would be no property which would be in existence for partition.

17.2. It is only after the sale deeds are declared to be void or not binding, the property would come back to the family for being considered for the purpose of relief of partition.

17.3. The contention of Sri Ashwathanarayan in this case is akin to putting a cart before the horse which would not be permissible.

17.4. In M/s. Durga Projects and Infrastructure Pvt. Ltd., Bengaluru v. Sri S. Rajagopala Reddy and others [ (2019) 04 KCCR 3891] at 8 which is reproduced hereunder for easy reference

8. As regards limitation, in Para 38 of the plaint it is clearly stated that the cause of action arose on 18.03.2005, 29.03.2007 and 15.06.2016. 18.03.2005 is the date when the first defendant executed a sale deed in favour of third defendant. That means, the cause of action first arose on 18.03.2005. This is a suit for declaration and possession. Just because possession is claimed, 12 years period of limitation is not available. Unless the sale deeds are set aside and the plaintiffs' title is declared, they are not entitled to possession. Declaration is the main relief in the circumstances pleaded. Article 58 of the Limitation Act is applicable and therefore the limitation is to be reckoned from the first date; the subsequent dates pleaded do not extend the limitation period. In the case of Khatri Hotels Private Limited v. Union Of India [(2011) 9 SCC 126.], it is held as below.

"30. While enacting Article 58 of the 1963 Act, the legislature has designedly made a departure from the language of Article 120 of the 1908 Act. The word 'first' has been used between the words 'sue' and 'accrued'. This 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. To put it differently, successive violation of the right will not give rise to fresh cause and the suit will be liable to be dismissed if it is beyond the period of limitation counted from the day when the right to sue first accrued".

17.5. In the present case, the suit having been filed seeking for a declaration that the sale deeds are not binding on the plaintiffs and for partition, I am of the considered opinion that without the prayer for declaration that the sale deeds are not binding on the plaintiffs, the question of partition would not arise. Applying the dicta laid down by this court in Durga Projects and Infrastructure Pvt. Ltd. Just because partition is claimed, 12 years period of limitation is not available. Unless the sale deeds are set aside the plaintiffs' are not entitled to partition. Declaration is the main relief in the circumstances pleaded. Article 58 of the Limitation Act is applicable and therefore the limitation is to be reckoned from the first date; the subsequent dates pleaded do not extend the limitation period.

17.6. Hence, I answer Point No. 3 by holding that in a suit for partition and declaration that certain sale deeds are not binding, without a declaration that the sale deeds are not binding a suit for partition would not be maintainable and as such period of limitation for that relief of declaration would have to be taken into consideration.

18. ANSWER TO POINT No. 4: Would the limitation period for such a suit be under Article 109 or 110 of the Limitation Act and when would the period for limitation start running

18.1. The contention of Sri K.G. Raghavan, learned Senior counsel is that in the present case, Article 58 applies insofar as the declaration that the sale deeds are not binding.

18.2. As regards the relief of partition he contends that it is Article 109 of Limitation Act which would be applicable. Sri Ashwathanarayan, learned counsel for plaintiffs would contend that it is Article 110 which would apply insofar as the relief of partition is concerned and since the relief of declaration is only a consequential relief, the period of limitation for partition would subsume the period of limitation for declaration.

18.3. Sri K.G. Raghavan, learned Senior counsel relied upon the decision of the Apex Court in Khatri hotel's case to contend that since in the present case Article 58 of the Limitation Act is applicable, the period of limitation is to be calculated from the date on which the right to sue first accrued.

18.4. His contention is that even if there are multiple causes of actions, the period of limitation would have to commence from the date on which the right to sue first accrued. In the present case, though there is a relief of partition which has been sought for, there is also a declaration sought for in respect of sale deeds executed and registered on 19.07.1995 and 20.07.1995; therefore, the suit is barred by limitation.

18.5. Cause of action is a bundle of facts giving rise to a particular relief. There are some aspects of cause of action which are stated in a plaint which are not essentially a cause for filing of the suit but only to support the plaint of a party in the suit, for example when a person claims declaration of ownership, one of the dates given in the cause of action para is the date on which purchase of the property was made and sale deed was registered. This date by itself would not give rise to a cause of action. This date and the event occurring on that date only supports the claim of the plaintiff in his claim regarding ownership.

18.6. The reason why the plaintiff would have approached the Court is on account of somebody else claiming a right or on account of somebody interfering with the property, etc., for which a different date would have been mentioned in the plaint and or the cause of action para.

18.7. It is this event which occurred on that particular date viz., the claim made by a third party or interference made by a third party which is the reason why the plaintiff is before the Court. Thus it is that date which would have to be considered to determine as to when the right to sue accrued. For this purpose, the Court cannot resort to a pedantic approach but has to consider the meaning and purport of the averments made in the cause of action para and or in the plaint.

18.8. In the present case, there is a specific prayer sought for by the plaintiff that the sale deeds dated 19.07.1995 and 20.07.1995 [totally 5 in Nos.] are not binding on the plaintiffs. There being a relief sought for as regards the sale deeds executed and registered on a particular date, this in my considered opinion would not be a general averment made in a cause of action para, but are actually causes for the plaintiff to approach the Court seeking for a relief.

18.9. The cause of action having arisen on 19.07.1995 and 20.07.1995, since the plaintiffs are minors on that date, what would have to be seen is whether there is any extension of the period of limitation. In terms of Article 60 which relates to a transfer of property belonging to a minor it is categorically stated that the same would have to be filed within a period of three years from the date on which the minor attained majority. Thus, the period taken in the minor attaining majority is excluded for the purpose of calculation of limitation period.

18.10. The period fixed for challenging the sale deed and or seeking for a declaration that the alienation of a joint family property is invalid is 12 years from the date on which sale happened. There is no distinction made out herein as regards majority or minority of the plaintiff.

18.11. In the present case, the right to sue having first arisen on 19.07.1995 and/or 20.07.1995, suit ought to have been filed within 12 years therefrom i.e. 18.07.2007 or 19.07.2007.

18.12. As per the cause title in the plaint and affidavit filed in support of the plaint which was filed on 6.07.2020, it is stated that the first plaintiff was aged 29 years as on that date and the second plaintiff aged 24 years as on that date. Hence, the first plaintiff was born in the year 1991 and attained majority in the year 2009, the second plaintiff was born in the year 1996 and attained majority in the year 2014.

18.13. The suit having been filed in the year 2020 is clearly beyond a period of three years from the date of which they attained majority. Plaintiff No. 1 ought to have filed the suit by 2012 and plaintiff No. 2 ought to have filed the suit in the year 2017 which has not been done.

18.14. Be that as it may. When the transaction occurred in the year 1995, plaintiff No. 2 was not even born. Hence, plaintiff No. 2 cannot even assert any right insofar as the suit schedule properties are concerned since the sale having occurred prior to his birth.

18.15. In view of the above, it is clear that the suit filed in the year 2020 is ex-facie barred by a law of limitation. The contention of the plaintiffs before the trial Court as also before this Court is that they were not aware of the sale deed being executed and or the right asserted by defendant No. 3 in respect of the said property, they came to know of it only when they received the summons in O.S. No. 508/2018 in the second week of January 2019.

18.16. Sri Aswathanarayana, learned counsel for the plaintiffs also contends that the plaintiffs enquired with defendants No. 1 and 2 who had stated that they had not executed any such document and that they had

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also filed a suit challenging the sale deeds, this is reiterated by Shri C Shankar Reddy. 18.17. On enquiry as to the date of filing of the suit, it is revealed that the said suit by Defendant No. 1 and 2, i.e., the father and uncle of the Plaintiffs was filed subsequent to the suit filed by the plaintiffs herein. Thus, this assertion is also negatived. 18.18. It cannot be believed that the plaintiffs were not aware of the sale deeds executed, more so when plaintiffs and defendant No. 1 are residing in the same house. There is no particular action taken by the Plaintiffs against Defendant No. 1 and 2 for the alleged act of theirs, they continue to reside together and the relationship between them is amicable. 18.19. Articles 58, 109 and 110 of the Limitation Act are reproduced hereunder for easy reference: 18.20. A perusal of Article 58 indicates that the period of limitation to obtain a declaration is a period of three years from the date on which the right to sue first accrued. This would be applicable only insofar as the sale deeds are concerned. 18.21. Article 109 relates to a suit filed by Hindu governed under Mitakshara law to set-aside the father's alienation of ancestral property. It is stated to be 12 years from the time when the alienee takes possession of the property. 18.22. Article 110 relates to a suit by a person who excluded from a joint family to enforce a right to a share therein which is a period of 12 years calculated from the date on which the exclusion becomes known to the plaintiff. 18.23. The contention of Ashwathanarayana is that it is only when the plaintiffs received the suit summons in O.S. No. 508/2018 and confronted defendants No. 1 and 2 that the plaintiffs came to know of they being excluded. Thus the act of exclusion is not in question but is only the knowledge of exclusion which is pleaded to have occurred in the year 2019 and he submits that the plaintiffs have a period of 12 years to file a suit therefrom. 18.24. I have considered Article 109 and 110 of the Limitation Act, 1963. In the present case, the plaintiffs have sought to set-aside the alienation made by their father, defendant No. 1 and their uncle defendant No. 2. 18.25. The entire reading of the plaint would only indicate that the relief is for partition and setting-aside the alienation made by their father. There is no relief as regards the exclusion of the plaintiffs from the joint family, nor is the relief of partition predicated on the exclusion. This stand of the Plaintiffs is also contradictory in that on the one hand the Plaintiffs claim that the Defendants No. 1 and 2 have not executed the sale deeds and on the other they claim that the execution of sale deed amounts to their exclusion from the family, which fact came to their knowledge only in the year 2019 on the suit summons being served. Both these contentions apart from being contradictory are also mutually destructive. 18.26. In view thereof, I am of the considered opinion that Article 110 of the Limitation Act would not apply, it is only Article 109 of the Limitation Act which would apply. 18.27. In terms of Article 109, as aforesated 12 years has to be taken from the date of possession of the property has been taken. There is a clear recital in the sale deed that the possession has been handed over on the date of sale. It is also the assertion of defendant No. 3 that defendant No. 3 is in possession exercising ownership rights. Thus even as per this, the period of 12 years would have to be calculated from the year 1995 which expired in the year 2007. Looked at from any angle, the suit is ex-facie barred by law of limitation. 18.28. I answer Point No. 4 by holding that in the present case suit under Article 109 of the Limitation Act which would apply and not Article 110 of the Limitation Act. 19. ANSWER TO POINT No. 5: Whether the order passed by the trial court requires any interference 19.1. The trial Court has rejected the application filed under Order 7 Rule 11 of CPC on the ground that there are disputed questions of facts and law which are required to be determined after trial. 19.2. In answer to point Nos. 1 to 4, I have dealt with various aspects relating thereto. It is clear from the reasoning given to the answers above that registration of a sale deed would constitute a constructive notice. 19.3. In the present case without seeking for declaration that the sale deeds are not binding, a relief for partition would not be maintainable. 19.4. Though the order in which the prayers have been sought for are partition first and declaration next, but in actuality, for the purpose of granting relief, first aspect that would be considered would be the declarative relief and thereafter relief of partition. 19.5. Insofar as declaration is concerned, in terms of Article 58 of the Limitation Act, the period would be three years from the date on which the right to sue first accrued, the date on which the sale deeds were registered viz., 19.07.1995 and 20.07.1995. The said period expired on 18.07.2007 and 19.07.2007. Hence the suit is ex-facie barred by the law of limitation. 19.6. Applying the benefit of Article 60 of the Act, the plaintiffs could have filed a suit three years after attaining majority. This also has not been done by the plaintiffs. Even assuming that Article 109 of the Limitation Act would have to be taken into consideration, the relief of partition dehors the relief of declaration, even the said period of 12 years expired on 18.07.2007 and 19.07.2007. Thus, even on this count the suit having been filed in the year 2020 is ex-facie barred by the law of limitation. 19.7. The above facts are clearly apparent from the face of records and reading of the plaint. The dates are categorically mentioned in the plaint and it is only the application of the relevant provision of law which is to be made. Thus, in terms of the decision of the Apex Court in Sopan Sudhdeo Sable's and Raghwendra Sharan Singh's case [supra], a Court would have necessary jurisdiction to reject a plaint under Order 7 Rule 11 of the CPC on the ground that the plaint is ex-facie barred by limitation so as to nip frivolous litigation at the bud, prevent abuse of the process of Court and also dismiss bogus and irresponsible litigation. 19.8. In the present case, the plaintiffs and defendant No. 1 are admittedly residing in the same address which has been confirmed on enquiry made to the counsels for defendants No. 1 and 2, as also of the plaintiff. 19.9. It is after the suit filed by the plaintiffs in O.S. No. 237/2020 that defendants No. 1 and 2 have also filed another suit. This would also establish collusion between the plaintiffs and defendants No. 1 and 2. Defendants No. 1 and 2 having sold property in the year 1995 have now set up the plaintiffs to file the above suit in O.S. No. 237/2020 when defendant No. 3 apparently has sought to develop the property which fact of development has also been confirmed by all the counsels during the course of argument. 19.10. It is after the plaintiffs have filed the suit in O.S. No. 237/2020, defendants No. 1 and 2 have also filed another suit. The sequence of events would indicate that the present suit, as also the suit filed by defendants No. 1 and 2 are an abuse of process of the Court and the process of this Court is sought to be made use of to create obstacles for defendant No. 3. This Court cannot permit such an action being taken by dishonest litigations. This would also require the Plaintiffs to be mulked with costs, they having sought to misuse and abuse the process of this court. 19.11. The trial Court ought to have appreciated all these facts and the trial Court ought to have rejected the plaint on the ground that the said suit was ex-facie barred by limitation, as also an abuse of process of the Court. 19.12. There is therefore a need to interfere with the orders passed by the trial court 20. ANSWER TO POINT No. 6: What order 20.1. The order dated 23.10.2020 passed by the Addl. Senior Civil Judge, Nelamangala, in O.S. No. 237/2020 on I.A. No. 3 filed under Order 7 Rule 11(a) and (d) is set-aside. 20.2. I.A. No. 3 filed under Order 7 Rule 11(a) and (d) is allowed. 20.3. The plaint is rejected. 20.4. The plaintiffs shall make payment of cost of Rs. 5,000/- each to the defendant No. 3.
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