CIVIL APPEAL NO. 9519 OF 2019 ARISING OUT OF SLP (CIVIL)NO, 11618 OF 2017
Order VII Rule 11(d), CPC , Section 73 AA of the Land Revenue Code.
In this case, the plaintiff was the owner of the plot of agricultural land of old tenure(approximately 8701 sq. mtrs).The land was under the restrictive tenure as per the section 73 AA of land revenue code.The plaintiff wanted to sell the property so he filed the application before the collector,surat for the permission to sell the disputed property to respondent no.1/defendant no.1. and sold the property to respondent no. 1 after obtaining the permission and respondent no.2 issued 36 cheques for the payment of Rs.1,74,02,000 towards the sale considerations in the favour plaintiffs and other details were set out in the registered sale deed dated 02.07.2009. But later respondent no. 2 sold the suit property to respondent no.s 2 and 3, registered in the sale dated 01.04.2013 for the consideration of Rs. 2,01,00,000. After 5 years the plaintiff filed a special suit before the principal civil judge, surat against the respondent no.1 and prayed that the sale deed dated on 02.07,2009 be cancelled and declared as being illegal, void, ineffective and not binding on them, ground being the sale consideration fixed by the collector had not been paid in entirety by respondent no.1. Plaintiff contended that the respondent no.1 had only paid Rs.40,000 through 6 cheques and the remaining 30 cheques were false. Respondent Nos. 2 and 3 filed an Application for Rejection of the Plaint under Order VII Rule 11 (a) and (d) of the CPC, contending that the suit filed by the Plaintiffs was barred by limitation, and that no cause of action had been disclosed in the plaint. It was submitted that if the sale deed dated 02,07,2009 was to be questioned then the suit must be only filed within 3 years.The Trial Court noted that the cheques were not presented for the encashment within 6 month.The Court held that being unable to encash 30 cheques, a complaint ought to have been filed by the plaintiff.There was however, nothing on record to show that the Plaintiffs had made any complaint in this regard for a period of over 5 years. Then the plaintiff filed the appeal before the high court of Gujaratat Ahmedabad The High Court rightly affirmed the findings of the Trial Court,and held that the suit was barred by limitation, since it was filed beyond the period of limitation of three years. Again the plaintiff filed a present civil appeal before SC.
We find that the averment in the plaint is completely contrary to the recitals in the sale deed dated 02.07.2009 because it was admittedly executed by the plaintiff in the favour of respondent no. 1 In the Sale Deed, the Plaintiffs have expressly and unequivocally acknowledged that the entire sale consideration was “paid” by Defendant No.1/Respondent No.1 herein to the Plaintiffs and still not filling for any legal action also reflects the institution of the present thought is an after-thought.
The present Civil Appeal is dismissed with costs of Rs. 1,00,000/- payable by the Appellant to Respondent Nos. 2 and 3, within a period of twelve weeks from the date of this Judgment.
Chapter 57 of the First Schedule to the Central Excise Tariff Act, 1985
ARTICLE 174(2)(B), ARTICLE 361 OF THE CONSTITUTION OF INDIA