Suman and Another Vs Meenakshi and Others

Mr. Nitin Sansanwal, Advoca t e for respondents No. 1 and 2. Mr. PS Chauhan, Advocate f o r respondent No. 3. Mr. Rahul Sangwan, Advocat e for respondent No. 4.

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NIDHI GUPTA, J.

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The present revision petitio n has been filed by defendants No. 3 and 4/petitioners herein, seeking s e tting aside of the order dated 17.01.202 3 (Annexure P-9) passed by the learned trial Court whereby the applicatio n dated NIL (Annexure P-7) file d by the petitioners under Order VII Rule 11 CPC for rejection of plaint, has been dismissed. 2. Brief facts of case are that pl a intiffs/respondents No. 1 and 2, had filed a Civil Suit No. 141-C dated 1 3 .07.2021 for declaration to the effect that they are absolute owners in p o ssession to the extent of 1/4^th share each in the ancestral joint Hindu fa m ily as described in the plaint; and the d e fendants have no concern or co n nections, whatsoever, with the share of t h e plaintiffs in any manner; and the alleged Release Deed bearing V a sika No. 6991 dated 17.01.2 0 13 allegedly got procured by

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RISHU KATARIA 2025.12.02 19:58 I attest to the accuracy and authenticity of this order/judgment.

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defendant N o. 2 from defendant No. 1 is a bsolutely illegal null and void; and the c o nsequent Mutation No. 2741 d a ted 30.01.2013 is, liable to be set aside; and that the alleged Gift Deed b earing Vasika No. 1847 dated 10.06.201 3 allegedly got procured by defe n dant No. 3 from defendant No. 2 regardin g part of the land out of the tota l suit land is also wrong, illegal, null and v o id; and that the resultant Muta t ion no. 2784 dated 18.06.2013 is also lia b le to the set aside; and for ma n datory (permanent) injunction directing t h e defendants to get the abov e ancestral land transferred in favour of t he plaintiffs to the extent to t heir shares with consequential relief of i n junction (prohibitory) restraini n g the defendants from further alienating s uit land. 3. Learned counsel for the peti t ioner/defendants No. 3 and 4, inter alia, submits that the impugned Release Deed No.6991 dated 17.01.201 3 (Annexure P-5) was execute d by defendant No. 1-Balraj in favour of his son-Sudhir/defendant No . 2. Said Release Deed was witnessed b y the plaintiffs - who are the daughters of defendant No. 1- Balraj, an d sisters of defendant No. 2-S u dhir. Even an affidavit dated 16.01.201 3 (Annexure P-10) was execu t ed by the plaintiffs attesting therein th a t they have supported the s a id Release Deed. Thereafter, defendant No. 2-Sudhir had executed registered Gift Deed dated 10.06.201 3 (Annexure P-6) of the suit pr o perty in favour of the present petitioners / his wife and daughter, who w ere also arrayed as defendants No. 3 and 4 in the main suit. It is submit t ed that however, a dispute had then arise n between the husband and wife i .e. Sudhir and petitioner No. 1-

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RISHU KATARIA 2025.12.02 19:58 I attest to the accuracy and authenticity of this order/judgment.

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Suman, w h ich led to filing of the present s uit on dated 13.07.2021 by the sisters of Sudhir.

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Learned counsel for the petitioners submits that the present suit was c l early barred by limitation as, d e claration in respect of Release Deed date d 17.01.2013 and Gift Deed da t ed 10.06.2013 (Annexures P-5 and P-6, r e spectively) was being sought af t er expiry of 08 years by way of filing the p resent suit on 13.07.2021. A c cordingly, the petitioners had filed the p r esent application dated NIL ( A nnexure P-7) under Order VII Rule 11 C PC for rejection of the plain t on the ground of limitation. Learned counsel points out that it ha d been averred in the plaint (Annexure P-1) that the plaintiffs have d iscovered about the execution aforesaid R elease Deed and Gift Deed onl y in the month of June 2021. It is contended that merely by cleverly dr a fting the plaint, the plaintiffs cannot se e k to overcome the rigors o f the Limitation Act, 1963. Moreover, as has been pointed out to this C ourt and as is patently evident from the p erusal of Release Deed that t h e plaintiffs had witnessed the aforesaid R elease Deed; and had also file d an affidavit (Annexure P-10) to this eff e ct. It is argued that the plaintif f s were the part of the aforesaid documents. They have not disputed the registration, execution and/or their sign a tures on the said documents / Release Deed and Affidavit. However, n ow in the present civil suit the y are contending that they have come to k n ow about the Release Deed and Gift Deed only in the month of June 2021. It is contended that if a person i s a party to the document, then he cannot d ispute the same. Further, learn e d counsel submits that all these facts coul d not have been held to be matte r of evidence as from the overall

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RISHU KATARIA 2025.12.02 19:58 I attest to the accuracy and authenticity of this order/judgment.

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reading o f the plaint and documents pla c ed on record by the plaintiffs themselve s , it was very clear that they were party to the said documents. Therefore, it was not open for them to dis p ute the same. Thus, the present suit is not m aintainable.

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In support, learned counsel relies upon judgment of the Hon’ble S upreme Court in Raghwendra Sharan Singh vs. Ram Prasanna Singh (Dead) by LRs: Law Finder Doc Id # 1395205, wherein it i s held as under:-

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“Civil Procedure Code, 19 0 8, Order 7, Rule 11(d) and Order 14, Rule 2 – Suit bar r ed by limitation – Rejection o f plaint – Plaintiff filed suit fo r declaration that gift deed was showy – Plaintiff specifically admitted execution of gift deed by him and his brother in 1 9 81 – Neither plaintiff not his brother claimed gift deed as showy for nearly 22 years – Gift deed is registered document – Defendant had instituted suit for partition in year 2001 ag a inst his brothers to which even plaintiff was party as defenda n t – Summon and copy of plaint in Partition Suit was served up on plaintiff in year 2001 itsel f – It cannot be said that gi f t deed came to knowledge o f plaintiff on 10.04.2003 – Suit barred by limitation – Application submitted by de f endant for rejection of plaint allowed.”

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The said view has been follo w ed by the Hon’ble Apex Court in subseq u ent judgments in Civil Appeal No. 500 and 2022 and other connected appeal, titled as C.S. Ramaswamy vs. V.K. Senthil and others decided on 30.09.2022; and in Ramisetty Venkatanna and another vs. Nasyam Jamal Saheb and others: Law Finder Doc Id # 2209437.

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Per Contra, learned counsel f or plaintiffs/respondents No. 1 and 2 veh e mently opposes the submission s advanced on behalf of learned counsel fo r the petitioners and submits th a t all the contentions raised by

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RISHU KATARIA 2025.12.02 19:58 I attest to the accuracy and authenticity of this order/judgment.

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learned co u nsel for the petitioners are m a tter of evidence and cannot be determine d without leading of evidence. 8. It is further pointed out by l e arned counsel for respondents No. 1 an d 2/plaintiffs that earlier the petitioners have preferred an applicatio n dated 19.08.2021 (Annexure P -2) under Order VII Rule 11 read with Section 151 CPC whereby the y have sought rejection of the plaint only on the ground of insufficient C o urt fees. It is submitted that the said application was dismissed by the lear n ed trial Court vide order dated 02.12.202 1 (Annexure P-4) against whic h no revision petition has been preferred b efore this Court by the petiti o ners. It is contended that the second/present application for rejection o f plaint is not maintainable. It is accordingl y prayed that the present revisio n petition may be dismissed.

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No other argument is raised o n behalf of either of the parties. I have hea r d learned counsel for the partie s and carefully gone through the case file. I find merit in the submis s ions advanced on behalf of plaintiffs/r e spondents No. 1 and 2. 10. The facts of the case have alr e ady been noted here-in-above. It has bee n contended on behalf of the pet i tioners/defendants No. 3 and 4 that the plaintiffs, in their plaint (Ann e xure P-1) have admitted the execution of Release Deed and Gift D e ed (Annexures P-5 and P-6, respectivel y ); and they have also admit t ed the registration, execution and/or th e ir signatures on the said docu m ents. However, perusal of the plaint (An n exure P-1) shows that in Par a No. 4 (vi) of the plaint, the plaintiffs h ave categorically averred as foll o ws: -

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“Para No. 4 (i) to (v) xxx xxx xxx

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RISHU KATARIA 2025.12.02 19:58 I attest to the accuracy and authenticity of this order/judgment.

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(vi) It is pertinent to submi t here that as far as the memory of the plaintiffs goes the alle g ed signatures of plaintiffs over the release deed of defenda n t No. 2 has been obtained by them in the year 2013 b y way of playing fraud and misrepresentation upon the p laintiffs under the pretext o f identification purposes in KC C loan etc. in good faith stating that defendants No. 1 and 2 want to obtain some kind o f loan/KCC over the land and accordingly the plaintiffs have put their respective signatu r es without going through the contents of the alleged doc u ment nor they were ever told about any alleged release dee d .”

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In para 5 of the plaint (An n exure P-1), the plaintiffs have further ple a ded that they came to now of t h e Release Deed and Gift Deed (Annexure s P-5 and P-6, respectively) o n ly in the month of June 2021. Thereafter , the present suit was instituted o n 13.07.2021. 12. It is well entrenched positio n in law that in an application under Ord e r VII Rule 11 CPC, only averm e nts made in the plaint are to be seen. The c ontention of learned counsel f o r the petitioners that merely by cleverly d r afting the plaint, the plaintif f s cannot seek to obviate the stipulation s of the Limitation Act, is m isconceived as, question of limitation is a mixed question of law a nd fact. Needless, to say the contention s raised by learned counsel for t h e petitioners with regard to the fact that t h e Release Deed (Annexure P - 5) bears the photographs and signatures etc. of the plaintiffs can only be determined upon trial after leading of evidence. The said factors cann o t be ascertained merely on the basis of ba l d averments made on behalf of the petitioners. 13. At the risk of repetition, it is reiterated that it is undisputed position in law that in an application filed under Order VII Rule 11 CPC only aver m ents made in the plaint are to be seen. Even the submissions made in the written statement cannot be c o nsidered at the time of dealing

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RISHU KATARIA 2025.12.02 19:58 I attest to the accuracy and authenticity of this order/judgment.

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with the a pplication under Order VII R u le 11 CPC. The submissions made on b e half of the petitioners are mixed questions of fact and law, the correctnes s of which can be established o nly upon leading of evidence. The Hon' b le Supreme Court in numero u s judgments including Eldeco Housing and Industries Ltd. vs. Ashok Vidyarthi and others: Law Finder Doc ID # 2406865 , has repeatedly held that no evidence, or merits of the co n troversy, can be examined at the stage of deciding an applicatio n under Order VII Rule 11 CP C ; and that only the averments made in t h e plaint would be relevant for i nvoking Order VII Rule CPC. Again, in Kamala and others vs. K.T. Eshwara Sa & Others, (2008) 12 SCC 661, the Hon'ble Supreme Court opi n ed that for invoking Order VII Rule 11 C P C, only the averments in the plaint would be relevant. For this purpose, t h ere cannot be any addition o r subtraction. No amount of evidence can be looked into. Reference may also be made to three-Judge Bench judgment of Hon’ble Supreme Court in Srihari Hanumandas Totala vs. Hemant Vithal Kamat & Others: Law Finder Doc ID # 1865777, w herein it has been held that “10 (iii)...In order to reject a plaint for t he suit being barred by any la w under Order 7 Rule 11(d), the court nee d s to be guided by the averm e nts in the plaint and not the defence ta k en....” It has been categorically held that the grounds taken by the defendant as defence cannot be taken into account while rejecting a plaint und e r Order 7 Rule 11 CPC. Relev a nt part of the said judgment is as under:-

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“16. Order 7 Rule 11(d) o f CPC provides that the plaint shall be rejected "where the s uit appears from the statement in the plaint to be barred b y any law". Hence, in order to

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RISHU KATARIA 2025.12.02 19:58 I attest to the accuracy and authenticity of this order/judgment.

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decide whether the suit is barred by any law, it is the statement in the plaint which will have to be construed. The Court while deciding such a n application must have due regard only to the statements in the plaint. Whether the suit is barred by any law must be determined from the statements in the plaint and it is not open to decide the issue on the basis of any other material includi n g the written statement in the case….”

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(Emphasis added)

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Furthermore, the petitioners h ave also unable to dispute that the presen t /second application dated NIL ( A nnexure P-7) under Order VII Rule 11 C PC was not maintainable. Admittedly, the petitioners had already ex h austed their remedy of filing a p plication under Order VII Rule 11 CPC b y way of their first application d a ted 19.08.2021 (Annexure P-2) which wa s dismissed by the learned trial Court vide order dated 02.12.202 1 (Annexure P-4). Admittedly, no revision was filed by the petitioners to challenge the order (Annex u re P-4); rather the petitioners have agai n filed the present application (Annexure P-7) on the same grounds. T he contentions raised by lear n ed counsel for the petitioners, that plaintiffs have no cause of action, is w i thout merit.