Oral Order
1. Learned advocate Mr.Asarar Mansuri submits that he has instructions to appear for respondents. He is permitted to file Vakalatnama in Registry.
2. By way of this Second Appeal under section 100 of Code of Civil Procedure, 1908 (for short 'CPC'), unsuccessful plaintiff challenges concurrent findings arrived at by the learned Court below, whereby, learned 2nd Additional District Judge, Devbhumi Dwarka @ Khambhalia by judgment and decree dated 28.02.2025 dismissed Regular Civil Appeal No.5 of 2024 confirming the order passed below Exh.1 dated 17.02.2024 in Regular Civil Suit No.21 of 2023, whereby, plaint of the plaintiff was rejected under Order 7 Rule 11 of CPC.
3. Parties are referred to as per their status before the learned Trial Court.
4. Plaintiff filed Regular Civil Suit No.21 of 2023 for cancellation of sale deed dated 30.10.2006 bearing Sr.No.2190 in favour of his real sister - Mintubha who expired on 16.03.2008. It is pleaded by the plaintiff that defendant - Bharatsinh is brother in law of the plaintiff. Other defendants are class - I heirs of deceased Mintubha. According to plaintiff, since deceased Mintubha wanted to become agriculturist within definition of Gujarat Land Revenue Code and since she orally requested plaintiff, the plaintiff sold land of survey no.1 paike 2 A - 200 Guntas without sale consideration. This agricultural field is know as 'Padhariyu' and part of agricultural field was sold to deceased Mintubha by way of registered sale deed dated 30.10.2006 bearing Sr.No.2190. The plaintiff further averred that though sale deed was executed in favour of his sister, it was formal document and execution was without intention to transfer title and possession but to bestow title of agriculturist to deceased Mintubha, therefore, plaintiff is in possession of agricultural field sold to deceased Mintubha. It is further averred in the plaint that deceased Mintubha and other siblings have filed affidavit relinquishing their right, title and share from this agricultural field. It is stated that in the year 2022, when defendant nos. 2 to 4 filed application before Revenue Officer to mutate their names in revenue record, notice under section 135(d) of Gujarat Land Revenue Code was served to the plaintiff. The plaintiff thereafter, filed suit for cancellation of sale deed. On being served, the defendants appeared and filed application at Exh.21 under Order 7 Rule 11 of CPC in suit proceedings to reject the suit on the ground of limitation.
5. Learned Principal Senior Civil Jude, Devbhumi Dwarka @ Khambhalia by its order dated 17.02.2024 allowed Exh.21 and rejected plaint under Order 7 Rule 11 of CPC on the ground that suit is filed hopelessly after 17 years of registration of sale deed, whereby, plaintiff was signatory and therefore, plaintiff had deemed knowledge of registration of sale deed.
6. Being aggrieved, the plaintiff filed Regular Civil Appeal No.5 of 2024. Learned Appellate Court dismissed the first appeal. Hence, being aggrieved, the plaintiff has filed present Second Appeal. Following substantial question of law are raised by the appellant :-
"(A) Whether the both courts below are justifying in not considering properly regarding question of limitation ?
(B) Whether the both Courts below are justifying in not considering that plaintiff is holding the land in question ?
(C) Whether the both courts below are justifying in not considering the application at Exh.21 of the defendants for dismissing the suit on the ground of limitation ?
(D) Whether the both courts below are justifying in not considering the order passed by the District Collector ?
(E) Whether the both Courts below are justifying in accepting the version of the defendants regarding issue of limitation ?
(F) Whether the both Courts below are justifying in not considering the evidence of plaintiff / appellant regarding suit land ?
(G) Whether the both Courts below are justifying in not considering exact meaning the Order 7 Rule 11 of the Civil Procedure Code where there are other evidence to be considered unless the same is adjudicated ?"
7. Heard learned advocates for the parties.
8. Learned advocate Mr.Barot for the appellant made solitary argument that limitation is mixed question of law and facts and it cannot be decided at threshold by the learned Courts below with regard to meritorious suit of plaintiff. It was argued that though plaintiff has executed sale deed in favour of Mintubha in the year 2006, however, title or possession was never handed over to deceased Mintubha. It is further submitted that sale deed was executed for limited purpose of terming Mintuba as agriculturist. It is further submitted that after execution of sale deed, deceased Mintubha executed relinquish deed by way of affidavit in favour of plaintiff which shows that sale deed was executed for limited purpose of making her as agriculturist. It is submitted that learned Courts below failed to consider the aspect that when plaintiff received notice from the Revenue Officer under section 135(d) of Gujarat Land Revenue Code, he came to know that defendants are trying to create title in the agricultural field sold to deceased Mintubha. Thus, suit according to plaintiff was within time period and question of limitation can be treated as mixed question of law and facts. Thus, it is submitted that learned courts below have seriously erred in rejecting the plaint.
8.1. Mainly on above submissions, it is submitted to admit this Second Appeal.
9. Learned advocate Mr.Mansuri for the respondent supports concurrent findings arrived at by Courts below and submitted to dismiss the Second Appeal at admission stage.
10. Needless to state that plea of rejection of plaint is a plea of demurer whereby, litigant raising such plea needed to accept pleading and averments made in the plaint as true and genuine. Defense of the defendants raised in the written statement or in application for rejection of plaint cannot be considered and has no relevance to decide application under Order 7 Rule 11 of CPC.
11. In the present case, it is admitted position that plaintiff and deceased - Mintubha are real siblings and they are children of deceased - Dhirubha Sodha. Plaintiff came out with case that since Mintubha intended to become agriculturist within meaning of Gujarat Land Revenue Code, upon her request, he has executed one registered sale deed on 30.10.2006 for agricultural land, particulars are stated in para 3 of the plaint. The sale deed was not genuine with intention to transfer title or possession. The very averment is not acceptable on the ground that if plaintiff is agriculturalist having derived title of agriculturalist from his father Dhirubha, deceased - Mintubha being Class I heir of deceased Dhirubha and real sister of plaintiff axiomatically gain status of agriculturist; she is not required to get executed any sale deed of agricultural land to become agriculturist. If she is not agriculturalist, she cannot be agriculturalist by way of purchasing any agricultural land. In presence of these aspects, pleadings of plaint is found to be falsehood and untenable. It is pure sale deed registered by the plaintiff himself in favour of deceased Mintubha on 30.10.2006.
12. Hon'ble Apex Court in the case of Hemlatha (D) by Lrs. v/s. Tukaram (D) by Lrs. reported in 2026 INSC 82 held that registered sale deed has strong presumption of validity and genuineness and cannot be declared as sham. It is settled position of law that a registered Sale Deed carries with it a formidable presumption of validity and genuineness. Registration is not a mere procedural formality but a solemn act that imparts high degree of sanctity to the document. (see : Prem Singh and Ors. vs. Birbal and Ors., (2006) 5 SCC 353 (para 27); Jamila Begum (Dead) Through Lrs. vs. Shami Mohd. (Dead) Through Lrs. and Anr., (2019) 2 SCC 727 (para 16), and Rattan Singh and Ors. v. Nirmal Gill & Ors., (2021) 15 SCC 300 (para 33). Thus, heavy burden of proof to displace this presumption lies upon the challenger.
13. Pleadings in plaint suggest some undisputed facts; that plaintiff and deceased Mintubha are real siblings. Registered sale deed was executed qua agricultural land, details of which are stated in para 3, dated 30.10.2006 by the plaintiff having Sr.No.2190. Deceased Mintubha died on 16.03.2008. The plaintiff having notice of execution of sale deed, as he is executant since 30.10.2006 did not carry proceedings to question legality and validity of the sale deed within three years there-from or within 3 years from the date of death of his sister. There is no pleadings of fraud in the matter. Undisputedly, section 3 of the Transfer of Property Act applies in the case on hand. Presumption carries that plaintiff has noticed execution of sale deed. Apt to note that nowhere in the plaint, the plaintiff has stated that he has no notice of execution of sale deed on 30.10.2006. Article 59 of the Limitation Act, 1963 provides time limit of 3 years to cancel or set aside an instrument or decree or for rescission of a contract and time begins to run when the facts entitling the plaintiff to have the instrument or the contract rescinded first become known to him.
14. Position of law has been clarified by Hon'ble Apex Court in the case of Shri Mukund Bhavan Trust and Ors. v/s. Shirmant Chhatrapati Udyayan Raje Pratapsinh Maharaj Bhonsel [(2024) 15 SCC 675]. It is held as under :-
"4. The plaintiff, in our wisdom, cannot assert or deny something which was whether within the knowledge of his predecessor or not, when he was not even born. Irrespective of the above, the fact that the predecessors of the Respondent No.1/plaintiff, never challenged the sale of property to the Defendant No.1/appellant by court auction and the subsequent registration of the deeds, despite constructive notice, would imply that they had acceded to the title of the appellant, which cannot now be questioned by the plaintiff after such long time. There is also a presumption in law that a registered document is validly executed and is valid until it is declared as illegal. In this regard, this Court in Prem Singh v. Birbal21, held as under:
"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."
15. At this juncture, it would be relevant to refer to relevant portion of Section 3 of the Transfer of Property Act, 1882, which reads as under:
"3. Interpretation clause...... ...... "a person is said to have notice" of a fact when he actually knows that fact, or when, but for wilful 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."
15. In the case of Uma Devi v/s. Anand Kumar [(2025) 5 SCC 198], Hon'ble Apex Court has elaborated the principle and held as under :-
"13. A registered document provides a complete account of a transaction to any party interested in the property. This Court in Suraj Lamp & Industries (P) Ltd. (2) v. State of Haryana [Suraj Lamp & Industries (P) Ltd. (2) v. State of Haryana, (2012) 1 SCC 656 : (2012) 1 SCC (Civ) 351 : (2012) 169 Comp Cas 133 : (2012) 340 ITR 1] held as under : (SCC pp. 664-65, para 15)
15. ... '17. ... Registration of a document [when it is required by law to be, and has been effected by a registered instrument] [Ed. : Section 3 Explanation I TPA, reads as follows:"
S. 3 Expln. 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...."(emphasis supplied)]] gives notice to the world that such a document has been executed
18. Registration provides safety and security to transactions relating to immovable property, even if the document is lost or destroyed. It gives publicity and public exposure to documents thereby preventing forgeries and frauds in regard to transactions and execution of documents. Registration provides information to people who may deal with a property, as to the nature and extent of the rights which persons may have, affecting that property. In other words, it enables people to find out whether any particular property with which they are concerned, has been subjected to any legal obligation or liability and who is or are the person(s) presently having right, title, and interest in the property. It gives solemnity of form and perpetuate documents which are of legal importance or relevance by recording them, where people may see the record and enquire and ascertain what the particulars are and as far as land is concerned what obligations exist with regard to them. It ensures that every person dealing with immovable property can rely with confidence upon the statements contained in the registers (maintained under the said Act) as a full and complete account of all transactions by which the title to the property may be affected and secure extracts/copies duly certified.' [Ed. : As observed in Suraj Lamp & Industries (P) Ltd. (1) v. State of Haryana, (2009) 7 SCC 363, pp. 367-68, paras 17-18.]
14. Applying this settled principle of law, it can safely be assumed that the predecessors of the Plaintiffs had notice of the registered sale deeds (executed in 1978), flowing from the partition that took place way back in 1968, by virtue of them being registered documents. In the lifetime of Mangalamma, these sale deeds have not been challenged, neither has partition been sought. Thus, the suit (filed in the year 2023) of the Plaintiffs was prima facie barred by law. The Plaintiffs cannot reignite their rights after sleeping on them for 45 years."
16. In view of the aforesaid provisions of law and the factual aspects of the case, the contention that the plaintiff came to know for the first time about his entitlement to seek cancellation of the sale deed only upon receipt of notice under Section 135(d) of Gujarat Land Revenue Code is found to be a camouflage, pleading adopted through clever drafting with the object of obtaining possession.
17. The scope of Second Appeal has been discussed by the Supreme Court in the case of Nazir Mohamed v. J. Kamala & Ors., reported in AIR 2020 SC 4321. The relevant para 37 thereof reads as under:-
"37. The principles relating to Section 100 CPC relevant for this case may be summarised thus :
(i) An inference of fact from the recitals or contents of a document is a question of fact, but the legal effect of the terms of a document is a question of law. Construction of a document, involving the application of any principle of law, is also a question of law. Therefore, when there is misconstruction of a document or wrong application of a principle of law in construing a document, it gives rise to a question of law.
(ii) The High Court should be satisfied that the case involves a substantial question of law, and not a mere question of law. A question of law having a material bearing on the decision of the case (that is, a question, answer to which affects the rights of parties to the suit) will be a substantial question of law, if it is not covered by any specific provisions of law or settled legal principle emerging from binding precedents, and, involves a debatable legal issue.
(iii) A substantial question of law will also arise in a contrary situation, where the legal position is clear, either on account of express provisions of law or binding precedents, but the Court below has decided the matter, either ignoring or acting contrary to such legal principle.
In the second type of cases, the substantial question of law arises not because the law is still debatable, but because the decision rendered on a material question, violates the settled position of law.
(iv) The general rule is, that High Court will not interfere with the concurrent findings of the Courts below. But it is not an absolute rule. Some of the well-recognised exceptions are where (i) the courts below have ignored material evidence or acted on no evidence; (ii) the courts have drawn wrong inferences from proved facts by applying the law erroneously; or (iii) the courts have wrongly cast the burden of proof. A decision based on no evidence, does not refer only to cases where there is a total dearth of evidence, but also refers to case, where the evidence, taken as a whole, is not reasonably capable of supporting the finding."
18. Applying above dictum on scope of second appeal under section 100 of CPC and for the foregoing reasons, this Court is of the considered opinion that the appellant has failed to make out case, as no substantial question of law emerges. Thus, the Second Appeal is dismissed at admission stage. Connected Civil Application also stands disposed of.
