Allowed

Abdul Aziz Miskin Vayda v. Hanifmuhammad Niyazmuhammad Shaikh

Gujarat HC22 Jun 2018SCA/8584/2015

Case brief

AI extract

What is this about?

The High Court allowed SCA challenging the rejection of an application to dismiss a civil suit under Order 7 Rule 11(d) CPC as time-barred. The suit, filed in 2014 to declare ownership of land, was held barred because it effectively challenged revenue entries from 1963-64 after more than 40 years.

What did the court decide?

The order dated 18.04.2015 admitting the suit under Civil Suit No. 51 of 2014 is quashed; the suit is held time-barred under Order 7 Rule 11(d) CPC and dismissed.

Abdul Aziz Miskin Vayda Vs Hanifmuhammad Niyazmuhammad… — Property and Title | Gujarat HC (2018)

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C/SCA/8584/2015 JUDGMENT

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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

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R/SPECIAL CIVIL APPLICATION NO. 8584 of 2015

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FOR APPROVAL AND SIGNATURE:

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HONOURABLE MR.JUSTICE BIREN VAISHNAV

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1 Whether Reporters of Local Papers may be allowed to see the judgment ?

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2 To be referred to the Reporter or not ? 3 Whether their Lordships wish to see the fair copy of the judgment ?

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4 Whether this case involves a substantial question of law as to the interpretation of the Constitution of India or any order made thereunder ?

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ABDUL AZIZ MISKIN VAYDA

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Versus

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HANIFMUHAMMAD NIYAZMUHAMMAD SHAIKH

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Appearance:

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MR MA KHARADI(1032) for the PETITIONER(s) No. 1,2,3,4 MR BG PATEL(599) for the RESPONDENT(s) No. 1 RULE SERVED(64) for the RESPONDENT(s) No. 2.1,2.2,2.3,2.4,2.5,2.6,2.7,2.8,2.9,3

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CORAM: HONOURABLE MR.JUSTICE BIREN VAISHNAV

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Date : 22/06/2018

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ORAL JUDGMENT

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1 This petition has been filed by the original

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defendant Nos. 10 to 14 challenging the order dated

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Page 1 of 7

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C/SCA/8584/2015 JUDGMENT

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18.04.2015. By the aforesaid order, the petitioners
application under Order 7 Rule 11 was rejected by the
learned 2nd Additional Senior Civil Judge, Dahod.

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2 The facts in brief are as under:

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2.1The plaintiff – respondent No.1 filed a Regular
Civil Suit No. 51 of 2014 for a declaration and
injunction with regard to land bearing Survey No.
571. It was the case of respondent No.1- plaintiff
that the ownership of the land in question was that
of the plaintiff. The question of ownership was so
claimed on the basis of a Revenue Entry No. 5831. It
was the case of the plaintiff – respondent No.1
herein that the entry posted in favour of the
defendants was wrong which was posted in 1964 and
that no right on the defendants vested by such
revenue entry. The prayer, therefore, was that the
land in question was of the ownership of respondent
No.1 and the entry which was made in 1963-1964 giving
the ownership to the petitioner was not correct.

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3The petitioners, therefore, filed an application
under Order 7 Rule 11 of the Code of Civil Procedure

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Page 2 of 7

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C/SCA/8584/2015 JUDGMENT

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praying that the suit be dismissed. Essentially, it
was the claim of the petitioners that the suit
apparently appeared to be barred by law, and
therefore, it should be dismissed under the
provisions of Order 7 Rule 11(d). It was the case of
the petitioners that the suit was hopelessly barred
by limitation because it amounted to reversing of
revenue entry of 1963-64.

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4The trial Court by the order under challenge
held that the question of limitation was a mixed
question of fact and law which can be decided by
leading evidence. Secondly, the trial Court did not
agree with the submission of the petitioners that the
suit was for only challenging of revenue entries, but

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it was also a question of deciding title and
ownership, and therefore, the Civil Court would have
jurisdiction.

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5Mr. M. A. Kharadi, learned advocate for the
petitioners – original defendant Nos. 10 to 14 has
assailed the order of the trial Court. He has
submitted that, it was apparent on reading the plaint

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Page 3 of 7

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C/SCA/8584/2015 JUDGMENT

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and the cause of action so stated in the plaint that
the genesis of the entire issue was the revenue
entries in 1963-64. Pointing my attention to
paragraph 17 of the plaint which prescribes the cause
of action, Mr. Kharadi pointed out that it was the
case of the plaintiff that there was tampering with
the revenue entry and it was on this count that the
suit though purported to be one of ownership, when
the plaint is seen, it was essentially for
challenging the revenue entries.

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6Mr. B.G.Patel, learned counsel appearing for the
respondent has supported the order passed by the
learned trial Judge. It is his case that, when the
prayer is seen, it is clear that the suit was
essentially for deciding the question of ownership.
The question of revenue entry was only incidental,
and therefore, it cannot be said that the suit was
for challenging the revenue entries solely. The
order, therefore, passed by the learned trial Judge
did not deserve interference.

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7Having considered the submissions of the learned

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Page 4 of 7

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C/SCA/8584/2015 JUDGMENT

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advocates for the respective parties, what is evident
on reading of the plaint is that, though what is
claimed by the plaintiff is ownership of the property
but the root cause admittedly for such a claim is,
according to the plaintiff on account of tampering of
revenue entries made in favour of the defendants /
petitioners herein in the year 1963-64. Reading of
the plaint, particularly paragraph 17 together with
the prayer would apparently suggest that the entire
base of the suit is to see that the revenue entries
which are in favour of the petitioners be cancelled.
It is well settled and needs no reiteration that,
when the averments in the plaint are seen amidst the
drawing of the plaint as is the case on hand, would
not shield the fact that essentially the cause of
action pleaded is for setting aside revenue entries
made in favour of the petitioners as far back in the
year 1963-64.

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8The suit, essentially therefore, would squarely
be barred under the provisions of Order 7 Rule 11 (d)
of the Code of Civil Procedure.

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Page 5 of 7

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C/SCA/8584/2015 JUDGMENT

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9To Shri B.G.Patel’s contention that it was
essentially a suit for deciding ownership, it is
apparent that to achieve that object of ownership, it
was the case of the plaintiffs to get the revenue
entries made in favour of the petitioners cancelled.
It will be worthwhile to reproduce the order of the
learned Judge, while admitting the petition. The
order dated 11.08.2016 passed by the learned Judge is
reproduced hereunder:

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“Prima facie, it appears that the plaintiff has challenged Entry No. 5831, which was posted way back on 27.11.1963 and certified on 26.03.1964. The said action of revenue authority is challenged by the respondent – plaintiff by filing suit in the month of December, 2013. Considering the provisions contained under Article 58 of the Limitation Act, Order 7 Rule 11 of the Code of Civil Procedure, the present petition deserves consideration.

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Therefore, issue Rule. Learned advocate Mr. B.G.Patel waives service of rule on behalf of respondent no.1. In the meanwhile, relief in terms of para 8(C) is granted.”

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10Though, this was prima facie view when the Court
admitted the petition, I am inclined to take the view
that this Court has taken while admitting the
petition. The plaintiffs have challenged the entries
of the year 1963-64 in the year 2013 i.e. after 40
years.

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Page 6 of 7

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C/SCA/8584/2015 JUDGMENT

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11Accordingly, I am of the view that the petition
deserves to be allowed.

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12The order dated 18.04.2015 passed below Exh.15
in Regular Civil Suit No. 51 of 2014 passed by the
learned 2nd Additional Senior Civil Judge, Dahod is
quashed and set aside. The petition is allowed.
Accordingly, the application filed by the petitioners
under Order 7 Rule 11(d) stands allowed and the suit
filed by respondent No.1 being Regular Civil Suit No.

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51 of 2014 is held to be time barred by law as
provided under Order 7 Rule 11(d) of the Code of
Civil Procedure. Rule is made absolute accordingly
with no order as to costs.

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(BIREN VAISHNAV, J)

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Bimal

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Page 7 of 7

Abdul Aziz Miskin Vayda v. Hanifmuhammad Niyazmuhammad Shaikh

Case brief

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Abdul Aziz Miskin Vayda v. Hanifmuhammad Niyazmuhammad Shaikh

Case brief

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