Ashok Vyankatrao Pinjarkar (Mundgaonkar) & Ors. vs Sau. Suvarna Sameer Bhopale & Anr.

Heard Advocate Mr. Shantanu Khedkar holding for Mr. V.B. Bhise, learned Advocate for the applicants and Advocate Mr. V.G. Wankhede, learned Advocate for the respondents.

The instant civil revision application has been preferred by the applicants, challenging the order dated 11.11.2025, passed by learned Civil Judge Senior Division, Akot, below Exhibit 10, in Special Civil Suit No.19 of 2025. By the said order, the trial court rejected the application preferred by the defendants (applicants herein), under Order VII Rule 11 of the Code of Civil Procedure, 1908 (for short, “CPC”).

The respondents, who are original plaintiffs, have filed a suit bearing Spl.C.S. No.19 of 2025, for declaration, partition and separate possession. In the said suit, they have prayed for following reliefs.

In the said suit, the applicants, who are original defendants, had filed an application under Order VII Rule 11 of CPC, for rejection of plaint. The main ground raised by the defendants is that the suit is filed in respect of certain documents seeking declaration is beyond the period of limitation. According to the applicants/defendants, the plaintiffs are claiming declaration that the documents at prayer clauses ‘1’ to ‘4’ are null and void. It further appears from the plaint itself that after the said documents, further disposition of the property took place. Under such circumstance, it is clear that the suit is filed beyond limitation and hence, it is liable to be rejected as it being barred by law of limitation.

Mr. Khedkar, learned Advocate for the applicants submitted that the trial court has passed the impugned order without considering the factual position on record. It was apparent that the suit filed by the respondents/plaintiffs was barred by the provisions of the Limitation Act. The trial court committed grave error in observing that the limitation was not a mixed question of law and facts and the plaint could not be rejected on said count. He vehemently submitted that, in prayer clause, more particularly prayer clauses ‘1’ to ‘4’, the said documents have been executed and registered between 1990 to 2012, whereas the suit has been filed on 02.07.2025. The subsequent documents mentioned in prayer clauses ‘5’ to ‘11’ in the plaint have been executed in pursuance of the right accrued in favour of defendant No.1 (applicant No.1 herein) only vide the documents mentioned in prayer clauses ‘1’ to ‘4’. Therefore, on failure to get any relief relating to the documents mentioned in prayer clauses ‘1’ to ‘4’, the respondents/plaintiffs will not be entitled to any relief as mentioned in subsequent prayer clauses. He submitted that in such a situation, it was obligatory on the part of the plaintiffs to specifically plead in the plaint as to when they got knowledge about the documents mentioned in prayer clauses ‘1’ to ‘4’. In absence of such pleadings, the trial court ought to have held in pursuance of provisions of Section 3 of the Transfer of Property Act that the plaintiffs had knowledge about the transactions mentioned in prayer clauses ‘1’ to ‘4’ from the date of its registration. Thus, as the suit is filed beyond the prescribed period of three years, from the date of execution and registration of the said documents, it is totally barred by the provisions of the Limitation Act. He submitted that the plaintiffs have deliberately not pleaded anything about the documents mentioned in prayer clauses ‘1’ to ‘4’. The plaintiffs now are trying to attempt to overcome the bar of limitation by taking recourse to clever drafting, which is impermissible. Therefore, he submitted that the impugned order passed by the trial court, thereby rejecting the application is totally illegal and requires to be quashed and set-aside by allowing the instant revision application.

Per contra, Mr. Wankhede, learned Advocate for the respondents strongly opposed the instant application. He submitted that the plaint discloses appropriate cause of action for the reliefs sought by the plaintiffs. The plaintiffs are the daughters of applicant Nos.1 and 2 and real sisters of applicant Nos.3 and 4. Initially, the plaintiffs have issued notice dated 31.01.2025 to the defendants (applicants herein), claiming share in the suit property and they have also issued another notice dated 25.06.2025, to make partition in the suit property by metes and bounds. He submitted that since the applicants/defendants failed to comply with the said notice, therefore, they have instituted the present suit, thereby claiming declaration, partition and separate possession in respect of the suit property. He submitted that the suit property is ancestral property of the plaintiffs and defendants.

Mr. Wankhede, learned Advocate for the respondents submitted that, in para.8 of the plaint, the plaintiffs have given details as regards as to how the defendants have falsely prepared the false and fabricated Will Deed of Vyankatrao Laxmanrao Pinjarkar (Mundgaonkar). The said Vyankatrao has expired on 07.06.2003 and his Will Deed is prepared just two months prior to his death i.e. on 17.04.2003, on the basis of which, the documents came to be prepared. It is claimed that the said Vyankatrao i.e. grandfather of the plaintiffs was bed ridden since last two years prior to his death and he had no control over his mind. The plaintiffs have contended that their grandmother viz. Manjulabai Vyankatrao Pinjarkar, has purchased the property, however, after the death of Vyankatrao, the said Manjulabai has no right to dispose of the property as the property was purchased from the fund of joint family property. The documents which have been tried to be executed through Manjulabai are also surrounding by many suspicious circumstances. He further submitted that, in para.18, it is stated that defendant No.1 was suffering from stroke with severe hypertension on 09.11.2022 and he was admitted in Ozone Hospital from 09.11.2022 till 20.11.2022. Due to the said stroke, defendant No.1 had lost his memory and also lost control over his mind. Taking advantage of his medical condition, defendant Nos.3 and 4 got executed forged Gift Deeds in their favour. Therefore, the plaintiffs have issued notice to the defendants on 25.06.2025, calling them to make partition of the suit property and handover the separate possession of 1/5^th share each by metes and bounds.

Mr. Wankhede, learned Advocate for the respondents submitted that, in para.20 of the plaint, the plaintiffs have stated that cause of action to file the suit arose on 25.06.2025. He, therefore, submitted that the limitation is a mixed question of law and facts and the point of limitation can only be decided after the evidence adduced by the parties as the plaintiffs are not party to the documents regards which declaration is sought. The suit property is also properly valued. He, therefore, submitted that the trial court has rightly rejected the application and therefore, the instant application, being devoid of merits, deserves to be dismissed.

After hearing learned Advocates for the parties and going through the record, it is clear that the suit is filed by the respondents/plaintiffs for partition and separate possession between them and defendant Nos.1, 3 and 4 of 1/5^th share each in the suit property. In prayer clauses ‘1’ to ‘11’, the plaintiffs are seeking declaration that the Will Deeds as well as Gift Deeds executed in favour of the defendants are null and void. It is settled position of law that the Court dealing with the application under Order VII Rule 11 of CPC is required to see the averments of the plaint and also the documents attached with the plaint. The defence of the defendants cannot be taken into consideration at the time of deciding the application under Order VII Rule 11 of CPC. In the suit for declaration and partition, the plaintiffs, who are sisters of defendant Nos.3 and 4, have specifically stated that the suit property is ancestral property of the plaintiffs and defendants.

Deceased Vyankatrao was the grandfather and deceased Manjulabai was the grandmother of the plaintiffs. They have given narration in the plaint that how the ancestral property came to be disposed of by making fraud on them. In the narration of plaint, the plaintiffs have given details as to how the property came to be disposed of by executing certain Gift Deeds in favour of the defendants. In all those narration upto para.18 of the plaint, it has been stated that as the property being ancestral property of the plaintiffs and defendants, therefore, defendant No.1 has no right to dispose of the property by way of Gift Deeds. Sum and substance of the plaint upto para.18 is, if to be ascertained, then it is only on the aspect that as to how the property came to be devolved right from the grandfather to the sons of defendant No.1 over the period of time.

However, after para.18, in para.19, the plaintiffs have stated that they along with defendant Nos.1, 3 and 4 are also entitled for 1/5^th share by metes and bounds in the suit property. They have received the information that the defendants would dispose of the property with intention to grab the suit property. Therefore, on 05.06.2025, they have issued public notice in daily newspaper “Deshonnati” and “Lokmat”. In response of the public notice, defendant Nos.1, 3 and 4 issued notice to the plaintiffs on 17.06.2025. By that notice, the defendants denied the claim of the plaintiffs. Therefore, on 25.06.2025, the plaintiffs issued notice to all the defendants calling them to make partition of the suit property and handover the separate possession of 1/5^th share each by metes and bounds to the plaintiffs. Since the defendants failed to comply the said notice, therefore, the plaintiffs have instituted the present suit for declaration, partition and separate possession. In para.20, the plaintiffs claimed that, therefore, the cause of action to file the present suit is arose on 25.06.2025 when they have demanded their share in the suit property and continued till filing of the suit.

On perusal of the entire plaint, it reveals that the plaintiffs have at all not stated as to when they got knowledge about the aforesaid documents against which they are seeking relief of declaration as null and void. In overall plaint, there is not a whisper to state that as to when they got knowledge about the aforesaid documents that same have been created by the applicants/defendants in order to defeat their claim. The plaint is, thus, not disclosing any details relating to the date of knowledge of the aforesaid documents.

In this regard, Order VII Rule 1(e) of CPC is required to be considered, which states that the plaint shall contain the facts constituting cause of action and when it arose. Order VII Rule 11(a) is very specific. It says that the plaint shall be rejected where it does not disclose any cause of action. It further says in clause ‘d’ of Rule 11 that the plaint shall be rejected where the suit appears from the statement in the plaint to be barred by any law. The plaintiffs, in para.20 of the plaint, have stated that the cause of action, according to them, arose on 25.06.2025, when they demanded their share in the suit property. However, it is already observed that there is not a whisper in the entire plaint as to when the plaintiffs got the knowledge about the execution of the documents referred in prayer clauses ‘1’ to ‘11’.

Mr. Khedkar, learned Advocate for the applicants relied on judgment delivered by the Hon’ble Supreme Court in the case of Shri Mukund Bhavan Trust and Others Vs. Shrimant Chhatrapati Udayan Raje Pratapsinh Maharaj Bhonsle and Another, reported in (2024) 15 SCC 675. He submitted that, in para.25 of the said judgment, it came to be contended that the question of the suit being barred by limitation can be decided at the time of trial as the question of limitation is a mixed question of law and facts. Though the question of limitation generally is mixed question of law and facts, when upon meaningful reading of the plaint, the court can come to a conclusion that under the given circumstances, after dissecting the vices of clever drafting creating an illusion of cause of action, the suit is hopelessly barred and the plaint can be rejected under Order VII Rule 11 of CPC. In the very same judgment at para.32, attention of this Court is invited, wherein it has been observed that in fact, there is no averment in the plaint to the effect that the predecessors were not aware of the transactions. The limitation period for setting aside the sale deed would start running from the date of registration of the same and as per Article 59 of the Limitation Act, 1963, after three years of the registration, the plaintiff is barred from seeking cancellation of the said registered sale deed or the decree that was passed before 50 years and the consequential judgments.

In para.33 and 41 of the said judgment, the Hon’ble Supreme Court has held as under.

In view of the aforesaid observations made by the Hon’ble Supreme Court, this Court finds that the aforesaid parameters are squarely applicable to the case in hand.

Mr. Wankhede, learned Advocate for the respondents relied on judgment delivered by this Court in the case of Vikas S/o. Ashok Pakhare and Another Vs. Jayashree W/o. Vinodchandra Saraf, reported in 2025(3) Mh.L.J. 121. The careful reading of the said judgment reveals that the plaintiffs therein have pleaded that they got to know about the registration of documents on particular dates.

However, in the plaint in question, as stated above there is not a whisper when the plaintiffs got knowledge about the registration of the aforesaid documents. In the instant matter, the suit naturally will be required to be filed within a period of twelve years from the date of execution of the document as the plaintiffs are not executant of the said documents. Since the prayer clauses ‘5’ to ‘11’ are pertaining to the subsequent documents which have been executed in pursuance to the right accrued in favour of defendant Nos.3 and 4 vide documents mentioned at prayer clauses ‘1’ to ‘4’. Therefore, the plaintiffs were required to specifically plead as to when they got knowledge about the documents mentioned in prayer clauses ‘1’ to ‘4’. In absence of such pleadings, the provisions of Section 3 of the Transfer of Property Act gets attracted, which reads thus, “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.”

In pursuance of the aforesaid clear provision of law, the reading of the plaint averments discloses that the plaintiffs being the real sisters of defendant Nos.3 and 4 would not have been said to not having knowledge of the alleged documents executed by the defendants. Therefore, non-mentioning of the date of knowledge of the aforesaid documents is attracting the provisions of Order VII Rule 1(e) of CPC. For the purpose of ascertaining cause of action and the limitation, the plaintiffs are required to state the date of knowledge of aforesaid documents. The silence on the part of the plaintiffs as regards non-mentioning the date of knowledge about the execution of the aforesaid documents, therefore, creates doubt. In para.20, they are straightway stating that cause of action arose on 25.06.2025. The said date is nothing but illusory and fictional date to bring the suit by clever drafting within limitation. Therefore, the impugned order passed by the trial court is illegal. The trial court has not exercised its jurisdiction vested in it by law. Hence, following order is passed.

ii) The order dated 11.11.2025, passed by learned Civil Judge Senior Division, Akot, below Exhibit 10, in Special Civil Suit No.19 of 2025, is quashed and set-aside.

iii) The application at Exhibit 10 is allowed.

iv) Accordingly, the plaint is rejected.