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REPORTABLE  

IN THE SUPREME COURT OF INDIA  

CIVIL APPELLATE JURISDICTION   

CIVIL APPEAL NO. 3500 OF  2018  (Arising out of SLP (Civil) No.26401 of 2017)  

  CHHOTANBEN AND ANR.         …..Appellant(s)          

:Versus:    

KIRITBHAI JALKRUSHNABHAI THAKKAR  AND ORS.           ....Respondent(s)  

J U D G M E N T  

A.M. Khanwilkar, J.  

1. This appeal, by special leave, takes exception to the  

judgment and order dated 13th January, 2017 of the High  

Court of Gujarat at Ahmedabad in Civil Revision Application  

No.76 of 2016.  

 2. The appellants filed a suit for declaration and permanent  

injunction on 18th October, 2013, against the respondents  

before the Principal Senior Civil Court, Anand, being Regular

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Civil Suit No.166 of 2015 (Old No. Special Civil Suit No.193 of  

2013). The frame of the subject suit is on the assertion that  

the appellants and original defendant Nos.1 & 2 were in joint  

ownership and possession of an ancestral property inherited  

by them from their predecessor (father), deceased Bawamiya  

Kamaluddin Saiyed, bearing Survey No.113/1+2, area H.1-37-

59 Ara, Akar Rs.15-81 paise. That land is old tenure  

agricultural land situated at Mouje Village, Hadgud Taluka  

and District Anand. The said ancestral, joint, undivided land  

was jointly possessed and used and enjoyed by the appellants  

(plaintiffs) and original defendant Nos.1 & 2 (predecessors of  

respondent Nos.2 to 15), after the demise of their father  

Bawamiya Kamaluddin Saiyed, being in his straight line of  

heirs. The names of Jahangirmiya Bawamiya Kamaluddin  

Saiyed and Hussainmiya Bawamiya Kamaluddin Saiyed  

(original defendant Nos.1 & 2 respectively) came to be recorded  

in the record of rights along with the names of the appellants  

and since that time, all of them were jointly in possession and  

usage of the undivided land. The appellants assert that they  

have half (1/2) share, rights, powers, possession and usage

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rights in the property.  It is their case that without their  

knowledge the original defendant Nos.1 & 2 transferred the  

said land after forging their (appellants) signatures. The  

appellants were not aware about the said transaction effected  

vide registered sale deed No.4425 dated 18th October, 1996,  

which they came to know from their community members,  

immediately whereafter they made enquiry in the office of Sub  

Registrar at Anand. It was revealed to them that the land has  

already been transferred by a registered sale deed dated 18th  

October, 1996 in favour of defendant Nos.4, 5 and 6 (Anilbhai  

Jaikrishnabhai Jerajani, Kiritbhai Jaikrishnabhai Thakkar  

and Kekanbhai Jaikrishnabhai Thakkar, respectively).  They  

promptly applied for a certified copy of the registered sale  

deed. They were also informed that Jaikrishnabhai Prabhudas  

Thakkar had expired and, therefore, the defendant Nos.3 to 6  

received the land as heirs. It is then asserted that from the  

registered sale deed, they came to know that their thumb  

impressions were obtained as witnesses in the presence of  

Bhikhansha Pirasha Divan. They asserted that they had never  

signed or gave their thumb impressions upon any such deed,

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in any manner, in front of any witness. It is then stated that  

some person has been fraudulently involved for putting thumb  

impressions on the sale deed. They have asserted that the  

thumb impressions on the sale deed did not belong to them  

and that they were ready and willing to prove that fact by  

providing their genuine thumb impressions in front of officers.  

It may be relevant to reproduce paragraph 4 of the plaint  

which reads thus:   

“4. The paragraph no.1 property is jointly owned, co-shared,  

jointly used and possessed by the applicants and  respondents nos.1 and 2. The respondents nos.1 and 2 do  not have any rights to sell the property on their own. In case  

if the respondents nos.1 and 2 have the willingness to sell  the property, they are required to obtain our consent. This  was very well in the knowledge of the respondents nos.1 and  

2 yet they have entered into a sale deed for the property in  an illegal manner. But the actual possession and usage of  

the suit property is jointly undertaken by us. Before two  days, the applicants meet the respondents and asked them  not to hinder, harass, etc. as to these rights on the land. We  

asked the respondents to partition our half part, provide  actual possession of the land, yet the respondents did not  

consider this request. On the contrary it was stated by them  that the respondents nos.2 to 6 shall sell the property to  someone else, the courts are open and we can take steps  

whatever we can.”    3. In paragraph 6 of the plaint, the appellants have stated  

about the cause of action for filing the suit in the following  

words:  

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“6. The cause as to the filing of the suit, as mentioned  

under the above mentioned paragraph pertains to the fact  

that the respondents nos.1 and 2 without the knowledge of  

the applicants, while keeping the applicant in dark, removed  

the name of the applicants from the record of rights and  

entered into a registered sale deed no.4425 dated  

18.10.1996 without the knowledge of the applicants. Upon  

getting the above mentioned knowledge, the applicants meet  

the respondents personally before two days and requested  

them to cancel the sale deed and hand over the clear,  

marketable and actual vacant possession of the property to  

the applicants. Yet the respondents did not consider the  

request and mentioned that the courts are open for us  

thereby asking us the applicants to do whatever we wished  

to do. Therefore the present issue has arise at the village  

Hadgud without the jurisdiction of the honourable court.”  

 4. As mentioned above, the suit came to be filed for  

declaration and permanent injunction and for the following  

reliefs:  

“a) The honourable court be pleased to declare that the  

property mentioned under the paragraph no.1 being situated  

at Mouje village Hadgud, Taluka and district Anand, survey  

no.113/1+2, area heacter 1-37-59 Ara, Akar Rs. 15-81 paisa  

old tenure agricultural land is ancestral property of the  

applicants and thereby the applicants have undivided ½  

(half) part, share, interest and right in the property and a  

partition of the land be undertaken in a judicial manner and  

the actual possession, usage, etc. be provided to the  

applicants in the interest of justice.   

b)  The honourable court be pleased to declare that the  

Mouje village Hadgud, Taluka and district Anand, survey no.  

113/1+2, area Heacter 1-37-59 Ara, akar Rs. 15-81 Paise old  

tenure agricultural land is ancestral, joint, undivided, jointly  

possessed and used property of the applicants and the  

respondents nos.1 and 2 and thereby the respondents nos.1

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and 2 solely do not have the rights and powers to sell or  

interference in the title of the property and further declare  

that the registered sale deed no.4425 dated 18.10.1996 in  

the favour of the respondents nos.4 and 6 is null and void,  

void ab-initio, cancelled, false and frivolous and thereby the  

honourable court be kind enough to declare in the interest of  

justice that the respondents nos.3 to 6 do not receive any  

kind of rights-powers as to the land on the basis of this  

particular sale deed.   

c) The honourable court be pleased to pass a permanent  

injunction order against the respondents and in the favour of  

the applicants such that, neither the respondents nor  

through their agents, servants, persons, etc. sell, mortgage,  

charge, lien, etc. the or construct, etc. upon the property  

mentioned under the paragraph no.1 and situated at the  

Mouje village Hadgud, Taluka and district Anand, survey no.  

113/1+2, area Heacter 1-37-59 Ara, akar Rs. 15-81 Paise old  

tenure agricultural.   

d) The honourable court be pleased to pass a permanent  

injunction order against the respondents and in the favour of  

the applicants such that, neither the respondents nor  

through their agents, servants, persons, etc. interfere,  

obstruct, hinder, etc. the ancestral, joint, undivided  

possession, usage, etc. of the applicants upon the property  

mentioned under the paragraph no.1 and situated at the  

Mouje village Hadgud, Taluka and district Anand, survey no.  

113/1+2, area Heacter 1-37-59 Ara, Akar Rs.15-81 Paise old  

tenure agricultural.   

e)  The honourable court be pleased to pass a permanent  

injunction order against the respondents and in the favour of  

the applicants such that, neither the respondents nor  

through their agents, servants, persons, etc. would alter the  

record of rights entries for the property mentioned under the  

paragraph no.1 and situated at the Mouje village Hadgud,  

Taluka and district Anand, survey no. 113/1+2, area  

Heacter 1-37-59 Ara, Akar Rs.15-81 Paise old tenure  

agricultural.  

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f)  The honourable court be pleased to pass an appropriate  

order found proper and efficacious by the honourable court.   

g)  The honourable court be pleased to order the respondents  

to provide for the cost as the suit.”  

  5. After filing of the suit, an application was filed on 19th  

November, 2014 under Orders XIII and XVI of the Code of Civil  

Procedure, 1908 (for short “CPC”) read with Sections 67 and  

71 of the Evidence Act for directions to defendant Nos.3 to 6 to  

produce before the Court, the original deed executed by the  

original defendant Nos.1 & 2 in respect of the suit land and to  

obtain the admitted thumb impressions of the appellants and  

send it for scientific examination and comparison of the  

thumb impressions by a Handwriting Expert to unravel the  

truth. The original defendant Nos.4 to 6 filed reply to the said  

application on 3rd February, 2015, to oppose the same.   

Thereafter, the defendant No.5 (respondent No.1) on 17th April,  

2015 filed an application under Order VII Rule 11(d) for  

rejection of the plaint on the ground that the suit was barred  

by limitation having been filed after 17 years. The appellants  

filed reply to the said application.  Both the applications under  

Order XIII Rule 16 and under Order VII Rule 11(d), were

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disposed of by the 4th Additional District Judge, Anand on 20th  

January, 2016 by separate orders. As regards the application  

filed by the plaintiffs (appellants), the Court allowed the same  

by passing the following order:   

“O R D E R  

The application is hereby allowed.  

The defendants are directed to produce registered sale deed  

no.4425 dt.18/10/1996 in the court and further the register  

civil court is directed to take specimen thumb impression of  

the plaintiffs as per rules and further such sale deed along  

with the specimen of thumb impressions of the plaintiffs be  

sent to thumb impression of the witnesses in such sale deed  

are of the plaintiffs or not.   

Further the thumb impression expert is directed to submit  his report within period of 30 days after receiving the  

documents.”  

6. As regards the application filed by defendant No.5  

(respondent No.1) for rejection of the plaint, the said  

application was dismissed by the Trial Court on the same day  

i.e. 20th January, 2016. The Trial Court opined that the  

contention urged by defendant No.5 (respondent No.1) for  

rejection of the plaint was not tenable as the factum of suit  

being barred by limitation was a triable issue, considering the  

averments in the plaint. The Trial Court observed thus:

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“3. I have given my thoughtful consideration to the  

submission made by the learned advocate for both the  

parties.  The plaintiffs have filed this suit to set aside in  

registered sale deed no.4425 dt. 18/10/1996.  And this suit  

has been filed on 18/10/2013.  And the contention of the  

Ld. Advocate for defendant no.5 that the suit has been filed  

after delay of almost 17 years and hence the suit is prima  

faciely barred by law of limitation and other submissions of  

the Ld. Advocate of defendant no. 5 that the plaintiffs do not  

have prima facie case, it cannot be considered at this stage  

because whether there is delay of almost 17 years in filling  

this suit or not and whether it is barred by law of limitation  

or not, it is subject matter of trial and moreover, the other  

submissions of Ld. Advocate for defendant no.5 regarding no  

prima facie case in favour of plaintiff also cannot be  

considered as these are also the subject matter of trial which  

can be decided only after taking the evidence. Moreover, at  

the time of deciding the application under order 7 rule 11  

the Court has to just look into the averments made in plaint  

only and the plea or defense raised by defendant cannot be  

taken into account at the stage of deciding the application  

under Order 7 Rule 11 and here in this case merely looking  

to the pleading in the plaint it does not come out that the  

suit barred by law of limitation. Moreover, I am of humble  

view the case law cited by Ld. Advocate for plaintiffs reported  

as 2015 (1) GLH 1, fully support to the case in hand.  

Moreover, I am of humble view that, the case cited by Ld.  

Advocate for defendant reported in 2015(2) GLH 355 and  

2013 (1) GLR 398, does not support in the present case as  

the factual position of these cases and present case are  

different.”  

 7. Respondent No.1 carried the matter before the High  

Court by way of a Civil Revision Application No.76/2016  

against the order passed by the Trial Court dismissing his  

application under Order VII Rule 11(d) of CPC for rejection of

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the plaint. The High Court allowed the application under  

Order VII Rule 11(d) of CPC filed by respondent No.1  

(defendant No.5) and reversed the decision of the Trial   

Court on the finding that the suit was barred by limitation.  

For so holding, the High Court in the impugned judgment  

observed thus:   

“18. This Court notices that the plaintiffs are the sisters and  

defendants No.1 and 2 in the suit of the year 2013 have  chosen not to file written statement. Thereby the original  

defendants No.1 and 2 who are sellers have not made their  stand clear. Strong possibility cannot be ruled out that the  plaintiffs after about 20 years of the registered sale deed has  

chosen to bring a collusive suit. It is true that only detail of  the plaint shall be examined at the stage of considering  application under Order VII Rule 11 of CPC. From a bare  

reading of the plaint, it is clearly indicative that the  registered sale deed has been effected in the year 1996 where  

the plaintiffs have affixed their thumb impression as  witnesses in the very document and the same came to be  challenged in the year 2013. The reason is not very far to  

fetch. With the phenomenal increase in the land price in the  State of Gujarat, such litigations by some of the family  members are sponsored litigations by other unscrupulous  

elements are so often initiated. It is not at all difficult to  engineer the same and upset many equations of the  

purchasers who have enjoyed the title and peaceful  possession for many years. Attempt is made to question the  registered sale deed on the ground that these were the  

ancestral property and 7/12 Form reflected the name of the  revisionist and other defendants. Revenue entry has also  

been mutated soon after the registered sale deed in favour of  the revisionist and other defendants in the year 1997. The  mutation order of village form has been effected on the basis  

of such registered sale deed on 21st January, 1997. Copy of  which has been issued on 31st March, 1997. For such  inexplicable delay plaintiffs ought to have brought on record  

substantiating the documents. However, the documents  which have been brought also point out that the plaintiffs’

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suit is barred by law of limitation for having been preferred  after expiry of three years period. It is to be noted that even  

during the course, when revenue authority mutated the  names of present revisionist and other respondents, no  

objection came to be raised and it is almost after 18 years,  such objections have surfaced.”    

8. The aforementioned decision of the High Court is the  

subject matter of this appeal at the instance of the appellants  

(plaintiffs). According to the appellants, the High Court  

committed manifest error in being swayed away by the fact  

that the suit was filed after about 17 years.  It has proceeded  

on the basis of assumptions and surmises and not in  

consonance with the limited sphere of consideration at the  

threshold stage for examining the application for rejection of  

the plaint in terms of Order VII Rule 11(d) of CPC.  It has not  

even bothered to analyse the relevant averments in the plaint  

which, it is well settled, has to be read as a whole and has also  

not adverted to the reasons recorded by the Trial Court that  

the factum of suit being barred by limitation was a triable  

issue in the facts of the present case.   

 9. The respondents, on the other hand, would contend that  

there is no infirmity in the view expressed by the High Court

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and being a possible view coupled with the fact that the suit  

instituted by the appellants appears to be a collusive suit, no  

interference in exercise of jurisdiction under Article 136 of the  

Constitution, is warranted. According to the contesting  

respondents, it is unlikely that the appellants who are sisters  

of original defendant Nos.1 & 2, would not have any  

knowledge about the transaction effected vide registered sale  

deed and especially, when defendant Nos.3 to 6 were in  

possession of the land for such a long time, which fact is  

reinforced from the mutation entries recorded in 1997 and  

including the conversion of the land from agricultural to non-

agricultural use. According to the contesting respondents, this  

appeal ought to be dismissed.   

10.  We have heard Mr. Purvish Jitendra Malkan, learned  

counsel for the appellants and Mr. Gaurav Agrawal, learned  

counsel for the contesting respondents.   

11. After having cogitated over the averments in the plaint  

and the reasons recorded by the Trial Court as well as the  

High Court, we have no manner of doubt that the High Court

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committed manifest error in reversing the view taken by the  

Trial Court that the factum of suit being barred by limitation,  

was a triable issue in the fact situation of the present case. We  

say so because the appellants (plaintiffs) have asserted that  

until 2013 they had no knowledge whatsoever about the  

execution of the registered sale deed concerning their  

ancestral property. Further, they have denied the thumb  

impressions on the registered sale deed as belonging to them  

and have alleged forgery and impersonation. In the context of  

totality of averments in the plaint and the reliefs claimed,  

which of the Articles from amongst Articles 56, 58, 59, 65 or  

110 or any other Article of the Limitation Act will apply to the  

facts of the present case, may have to be considered at the  

appropriate stage.  

12. What is relevant for answering the matter in issue in the  

context of the application under Order VII Rule 11(d), is to  

examine the averments in the plaint. The plaint is required to  

be read as a whole. The defence available to the defendants or  

the plea taken by them in the written statement or any

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application filed by them, cannot be the basis to decide the  

application under Order VII Rule 11(d). Only the averments in  

the plaint are germane. It is common ground that the  

registered sale deed is dated 18th October, 1996. The limitation  

to challenge the registered sale deed ordinarily would start  

running from the date on which the sale deed was registered.  

However, the specific case of the appellants (plaintiffs) is that  

until 2013 they had no knowledge whatsoever regarding  

execution of such sale deed by their brothers - original  

defendant Nos.1 & 2, in favour of Jaikrishnabhai Prabhudas  

Thakkar or defendant Nos.3 to 6. They acquired that  

knowledge on 26.12.2012 and immediately took steps to  

obtain a certified copy of the registered sale deed and on  

receipt thereof they realised the fraud played on them by their  

brothers concerning the ancestral property and two days prior  

to the filing of the suit, had approached their brothers (original  

defendant Nos.1 & 2) calling upon them to stop interfering  

with their possession and to partition the property and provide  

exclusive possession of half (1/2) portion of the land so  

designated towards their share. However, when they realized

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that the original defendant Nos.1 & 2 would not pay any heed  

to their request, they had no other option but to approach the  

court of law and filed the subject suit within two days  

therefrom.  According to the appellants, the suit has been filed  

within time after acquiring the knowledge about the execution  

of the registered sale deed. In this context, the Trial Court  

opined that it was a triable issue and declined to accept the  

application filed by respondent No.1 (defendant No.5) for  

rejection of the plaint under Order VII Rule 11(d). That view  

commends to us.    

 13. The High Court on the other hand, has considered the  

matter on the basis of conjectures and surmises and not even  

bothered to analyse the averments in the plaint, although it  

has passed a speaking order running into 19 paragraphs. It  

has attempted to answer the issue in one paragraph which  

has been reproduced hitherto (in paragraph 7). The approach  

of the Trial Court, on the other hand, was consistent with the  

settled legal position expounded in Saleem Bhai and Others

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Vs. State of Maharashtra and Others1, Mayar (H.K.) Ltd.  

and Others Vs. Owners & Parties, Vessel M.V. Fortune  

Express and Others2 and also T. Arivandandam Vs. T.V.  

Satyapal and Another3.    

14. These decisions have been noted in the case of Church  

of Christ Charitable Trust and Educational Charitable  

Society  Vs. Ponniamman Educational Trust,4 where this  

Court, in paragraph 11, observed thus:  

“11. This position was explained by this Court in Saleem  Bhai v. State of Maharashtra, in which, while considering  Order 7 Rule 11 of the Code, it was held as under: (SCC p.  

560, para 9)  

“9. A perusal of Order 7 Rule 11 CPC makes it  clear that the relevant facts which need to be  

looked into for deciding an application  thereunder are the averments in the plaint. The  trial court can exercise the power under Order 7  

Rule 11 CPC at any stage of the suit—before  registering the plaint or after issuing summons  to the defendant at any time before the  

conclusion of the trial. For the purposes of  deciding an application under clauses (a) and (d)  of Rule 11 of Order 7 CPC, the averments in the  plaint are germane; the pleas taken by the  defendant in the written statement would be  

wholly irrelevant at that stage, therefore, a  direction to file the written statement without  

deciding the application under Order 7 Rule 11  CPC cannot but be procedural irregularity  

                                                           1 (2003) 1 SCC 557  2 (2006) 3 SCC 100  3 (1977) 4 SCC 467  4   (2012) 8 SCC 706  

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touching the exercise of jurisdiction by the trial  court.”  

It is clear that in order to consider Order 7 Rule 11, the  court has to look into the averments in the plaint and the  same can be exercised by the trial court at any stage of the  

suit. It is also clear that the averments in the written  statement are immaterial and it is the duty of the Court to  scrutinise the averments/pleas in the plaint. In other words,  

what needs to be looked into in deciding such an application  are the averments in the plaint. At that stage, the pleas  

taken by the defendant in the written statement are wholly  irrelevant and the matter is to be decided only on the plaint  averments. These principles have been reiterated in  

Raptakos Brett & Co. Ltd. v. Ganesh Property and Mayar  (H.K.) Ltd. v. Vessel M.V. Fortune Express.”  

 15. The High Court has adverted to the case of Church of  

Christ Charitable Trust and Educational Charitable  

Society (supra), which had occasion to consider the  

correctness of the view taken by the High Court in ordering  

rejection of the plaint in part, against one defendant, on the  

ground that it did not disclose any cause of action qua that  

defendant. The High Court has also noted the decision relied  

upon by the contesting respondents in the case of Mayur  

(H.K.) Ltd. and Ors. (supra), which has restated the settled  

legal position about the scope of power of the Court to reject  

the plaint under Order VII Rule 11(d) of CPC.  

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 16. In the present case, we find that the appellants  

(plaintiffs) have asserted that the suit was filed immediately  

after getting knowledge about the fraudulent sale deed  

executed by original defendant Nos.1 & 2 by keeping them in  

the   dark about such execution and within two days from the  

refusal by the original defendant Nos.1 & 2 to refrain from  

obstructing the peaceful enjoyment of use and possession of  

the ancestral property of the appellants. We affirm the view  

taken by the Trial Court that the issue regarding the suit  

being barred by limitation in the facts of the present case, is a  

triable issue and for which reason the plaint cannot be  

rejected at the threshold in exercise of the power under Order  

VII Rule 11(d).   

 17.   In the above conspectus, we have no hesitation in  

reversing the view taken by the High Court and restoring the  

order of the Trial Court rejecting the application (Exh.21) filed  

by respondent No.1 (defendant No.5) under Order VII Rule  

11(d).  Consequently, the plaint will get restored to its original  

number on the file of the IVth Additional Civil Judge, Anand,

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for being proceeded further in accordance with law.  We may  

additionally clarify that the Trial Court shall give effect to the  

order passed below Exh.17 dated 20th January, 2016,  

reproduced in paragraph 5 above, and take it to its logical end,  

if the same has remained unchallenged at the instance of any  

one of the defendants. Subject to that, the said order must be  

taken to its logical end in accordance with law.   

18. Accordingly, this appeal succeeds and is allowed in the  

above terms, with no order as to costs.     

.………………………….CJI.        (Dipak Misra)   

…………………………..….J.                (A.M. Khanwilkar)  

…………………………..….J.               (Dr. D.Y. Chandrachud)  

New Delhi;  

April 10, 2018.