IN THE HIGH COURT OF ANDHRA PRADESH :: AMARAVATI FRIDAY ,THE TENTH DAY OF JANUARY TWO THOUSAND AND TWENTY FIVE PRESENT THE HONOURABLE SRI JUSTICE VENKATESWARLU NIMMAGADDA CIVIL REVISION PETITION NO: 1205 OF 2024 Petition under Article 227 of the Constitution of India, aggrieved by the Order dated 13-03-2024 passed in I.A No. 517 of 2023 in O.S No. 38 of 2023 on the file of the Honourable Court of Additional Senior Civil Judge, Ongole, Prakasam district. Between: 1. Jalasri Lakshmana Rao, S/o Venkateswarlu, Aged about 50 years, R/o Kesava Swamy Peta, Beside Bhagiradha Maharshi Mandir, Ongole, Prakasam District. 2. GandikotaSuseela, w/o Late Krishna, Aged about 54 Yarajarla Village, Tangutur Mandal Prakasam District. 3. Jalasri Rama Devi, w/o Lakshman Rao Aged about 47 Kesava Swamy Peta, Ongole, Prakasam District. 4. Reddy Venkateswarlu, S/o ChinnaYellamanda, Aged about 44 R/o Kesava Swamy Peta, Ongole, Prakasam District. . 5. Reddy Srinu, s/o China Yallamanda Aged about 42 years, R/o Kesava Swamy Peta, Ongole, Prakasam District years, R/o years, R/o years. ...PETITIONERS HEREIN/ PETITIONERS IN I.A N0.517 OF 2023/DEFENDANTS IN O.S N0.38 OF 2023 AND < Reddy Nagamma, w/o Late Srinivasa Rao, Aged about 54 years R/o VallururVillage, Kakumanu Mandal, Guntur District. ...RESPONDENT HEREIN/RESPONDENT IN I.A N0.517 OF 2023/PLAINTIFF IN O.S N0.38 OF 2023 lA NO: 1 OF 2024 Petition under Section 151 CPC praying that in the circumstances stated in the affidavit filed in support of the petition, the High Court may be pleased to grant stay of all further proceedings in O.S. No. 38 of 2023, on the file of the Hon’ble Court of Additional Senior Civil Judge, Ongole, Prakasam district, A.P. Counsel for the Petitioner : MS AYESHA AZMA S Counsel for the Respondents : SRI SS RAMA KRISHNA PRASAD The Court made the following ORDER : VA 7 IN THE HIGH COURT OF ANDHRA PRADESH :: AT AMARAVATI THE HONOURABLE SRI JUSTICE VENKATESWARLU NIMMAGADDA CIVIL REVISION PETITION NO: 1205/2024 Between: Jalasri Lakshmana Rao and others ...Petitioners AND Reddy Nagamma Counsel for the Petitioners; ...Respondent I.S.Ayesha Azma Counsel for the Respondent: 1.SS Rama Krishna Prasad The Court made the following order: The Civil Revision Petition is filed challenging the order dated 13.03.2024, passed in I.A.No.517 of 2023 in O.S. No. 38 of 2023, on the file of the Additional Senior Civil Judge, Ongole. The petitioners herein are the defendants, and the respondent herein is the plaintiff in the suit. The suit was filed for the cancellation of the registered gift deed dated 31.03.2010 in respect of Item No.1 of the suit schedule 2. property and for the partition of the ancestral property in respect of Item No.2 of the suit schedule property. 3. Hereafter, the parties will be referred to as per the cause title of the Revision Petition. The brief facts are that the 1®* petitioner and the 1®‘ respondent are brother and sister, and petitioners Nos.2 to 5 herein are the legal heirs of one 4. f 2 NV,.^ C.R.P.No.1205 of2024 of their sister. The plaint schedule property consists of two items. Item No.1 is an asbestos sheet house bearing Door No.36-1-110, along with a vacant site admeasuring 150 square yards, situated in Sy.No.519, Ongole Municipality, Ward No. 3, Block No. 10, which is the scheduled property of the registered gift settlement deed document No.4818 of 2010, dated 31.03.2010. Item No.2 is a vacant house site admeasuring 250 square yards in Sy.No.519, bearing Door No. 36-1-110, within Ongole Municipal limits. Ward No.3, Block No.10. While so, I.A.No.517 of 2023 in O.S.No.38 of 2023 was filed under Order VII Rule 11(d) of the CPC, seeking rejection of the plaint, on the ground that the plaint is barred by limitation since the registered settlement deed executed by the respondents along with two other sisters in the year 2010. was Learned counsel for the petitioners submits that the order dated 13.03.2024 passed by the Court below is contrary to law and facts on hand. As per Article 59 of the Limitation Act, 1963, any suit for cancellation of any instrument should be filed within a period of 3 years. Admittedly, in the present case, the suit is filed after 13 years, after the execution of the registered gift settlement deed dated 31.03.2010, for cancelling the same. 5. The Court below ought to have allowed the petition on the ground that, although the plaint schedule enumerates two items denoting unsettled property, both items are one and the same, contiguous single vacant plot/single property. Therefore, seeking partition against Item No.2 is only an 6. 3 NV,J C.R.P.No.l205of2024 invention for maintainability of the suit, contrary to the settled legal proposition that once the cause of action is barred by limitation, no relief can be sought. 7. The Court below dismissed the petition filed under Order VII Rule 11(d) of the CPC, against the intention/object of the law. Once the suit is lawfully barred by limitation, the Court below ought to have observed the facts narrated by the respondent/plaintiff in her plaint, that the 1®‘ petitioner herein played fraud against the 1®* respondent and her two sisters by taking advantage of their illiteracy and innocence in the execution of the gift settlement deed dated 31.03.2010. The said fraud was found in the month of November 2022. 8. The learned counsel further submits that this contention is only an invention for the purpose of filing the present suit, as if it is within the limitation by claiming the alleged fraud. He also submits that the Court below incorrectly considered Article 17 of the Limitation Act, 1963, which states that the period of limitation shall not begin to run until the plaintiff/respond ent has discovered the fraud. 9. The Court below erroneously dismissed the application, contrary to the rationale laid down by the Hon'ble Apex Court in C.S. Ramaswamy vs. V.K. Senthil^ and Kum. Geetha vs. Nanjundaswamy^, she further prayed that, in view of the ratio laid down by the Hon'ble Apex Court and as per the object of Order VII Rule 11(d) of the CPC, the Revision Petition is liable to be allowed. ^ C.A.No.500 of 2022 dated 30.09.2022 ^ C.A.No.7413 of 2023 dated 3140^023 NV,,l9» C.R.P.No.1205 of2024 respondent submitted property is a single contiguous plot/single property, is contrary to the facts. The schedule of the gift settlement deed dated 31.03.2010 only. The rest of the property 10. On the other hand, the learned counsel for the that the contention of the petitioners, that the entire piaint schedule specifically relates to Item No. 1 remains as joint family ancestral property, denoted as item No.2, and seeking partition against it is maintainabie. 11. The Court below rightly considered the rights of the respondent/plaintiff, being the daughter of Late Subbamma, who is the original property holder of the plaint schedule property. It is a settled proposition of law that daughter is a co-parcener even a par with the petitioners. As such, the petitioners cannot be permitted to infringe the respondent's right to on property, guaranteed under Article 300-A of the Constitution of India. 12. Accordingly, the Court below rightly rejected/dismissed the petitioners. It is also settled law that for seeking partition of property, the limitation period under Article 59 of the Limitation not applicable. As such, the Court below the petition of ancestral Act, 1963, is rightly held that the suit is maintainable and not time-barred, as contended by the petitioners. 13. Learned counsel further submitted that the fraud allegedly committed by the petitioners came to light in the month of November 2022, when the petitioners tried to grab the property as sole property, denying the right of the respondent as a rightful owner. The same was rightly admitted by the Court 5 NVJ C.R.P.No.1205 of2024 below, as per Article 17 of the Limitation Act, 1963, which states that the limitation period starts from the date of knowledge of the fraud. Therefore, the Court below rightly dismissed the Petition, in accordance with the rule laid down by the Hon'ble Apex Court in the cases of Srihari Hanumandas Totala vs. Hemant Vithal Kamat^, Saranpal Kaur Anand vs. Praduman Singh Chandhok"^, Vaish Aggarwal Panchayat vs. Inder Kumar ® and Satti Paradesi Samadhi and Pillayar Temple vs. M.Sankuntala^. 14. 15. Heard learned counsel for the petitioners and learned counsel for the respondents. Perused the material placed on record. 16. The petitioners and respondents are legal heirs/successors of one Smt. Subbamma, who is the original property holder of the plaint schedule property, who died intestate. The subject suit is filed seeking two reliefs one is for cancellation of the gift settlement deed executed in 2010 on the ground of fraud and second one is for partition of Item No.2 of the plaint schedule property. It is settled law that the respondent, as a daughter, is a co-parcener in respect of joint family ancestral properties. Item Nos.1 and 2 of the plaint 17. * (2021) 9 see 99 eivil Appeal No.2573 of 2022 (Arising out of SLP (c) No.27794 of 2016, dated 28.03.222 ^ (2020) 12 see 809 ® (2015) 5 see 674 I 6 NV,^ C.R.P.No.1205 of2024 schedule properties appear to be ancestral/joint family properties of both petitioners and respondent. However, the gift settlement deed only pertains to 150 sq. yards 18. situated in Sy.No.519, Ongole Municipality at Ward No.3 block No.10. The contention of the plaintiff that Item Nos.1 and 2 are one and the same property, is an attempt to circumvent the limitation and to maintain the suit for trial. The claim for partition 13 after years of the execution of the relinquishment deed in favor of the 1®^ petitioner is contrary to the facts. The 19. schedule of the property of the deed is only a shed with land 150 sq. yards. that Item No.2 is certainly out of the ambit of the gift deed. In view of the settled legal proposition, the respondent, being a 20. co-parcener/daughter, is entitled to enforce her rights against ancestral/joint family property and can sought for partition in respect of Item No.2 of the plaint schedule property. This right cannot be deprived to the respondent/plaintiff due to limitation, as it is a constitutional right guaranteed under Article 300-A of the Constitution of India, apart from recognizing the said right as human right. As a co-parcener of joint family property, the respondent is entitled to 21. enforce her right to partition under the scheme of Hindu Succession Act as well as under the constitutional right guaranteed under Article 300-A of Constitution of India. ' n- 7 NV,J 0 C.R.P.No.l205of2024 The claim of the respondent that the petitioners committed fraud and 22. got executed the gift deed on 31.03.2010, taking advantage of the respondent's and her sisters' innocence and ignorance, which was allegedly discovered in the year 2022, is contrary to the facts and circumstances. It can be held against respondents and in favor of the petitioner. Therefore, the suit should be preceded in respect of schedule of property of item No.2 only. In view of the admitted facts that the respondent's ignorance and 23. innocence existed even in the year 2010, it is inconsistent to plead that the same as if it was found in the year 2022. 24. It is to be noted that the learned counsel for the petitioners placed reliance on the decision in C.S. Ramaswamy vs. V.K. Senthil (supra) wherein it is held as follows: “2.2 The learned Trial Court dismissed the applications under Order VII Rule 11 CPC by observing that the issue of limitation is a mixed question of law and facts and therefore, the respective prayers are not required to be rejected at this stage in exercise of powers under Order VII Rule 11(d) of the C.P.C. 7.7 Even the averments and allegations with respect to knowledge of the plaintiffs averred in paragraph 19 can be said to be too vague. Nothing has been mentioned on which date and how the plaintiffs had the knowledge that the document was obtained by fraud and/or misrepresentation. It is averred that the alleged fraudulent sale came to the knowledge of the plaintiffs only when the plaintiffs visited the suit property. Nothing has been mentioned when the plaintiffs visited the suit property. It is not understandable how on visiting the suit property, the plaintiffs 8 C.R.P.No.1205 of2024 could have known the contents of the sale deed and/or the knowledge about the alleged fraudulent sale. 7.8 Even the averments and allegations in the plaint with respect to fraud are not supported by any further averments and allegations how the fraud has been committed/played. Mere stating in the plaint that a fraud has been played is not enough and the allegations of fraud must be specifically averred in the plaint, otherwise merely by using the word "fraud”, the plaintiffs would try to get the suits within the limitation, which otherwise may be barred by limitation. Therefore, even if the submission on behalf of the respondents - original plaintiffs that only the averments and allegations in the plaints are required to be considered at the time of deciding the application under Order VII Rule 11 CPC is accepted, in that case also by such vague allegations with respect to the date of knowledge, the plaintiffs cannot be permitted to challenge the documents after a period of 10 years. By such a clever drafting and using the word "fraud”, the plaintiffs have tried to bring the suits within the period of limitation invoking Section 17 of the limitation Act. The plaintiffs cannot be permitted to bring the suits within the period of limitation by clever drafting, which otherwise is barred by limitation. At this stage, a recent decision of this Court in the case of Raghwendra Sharan Singh (supra) is required to be referred to ” 25. In the case of Kum. Geetha vs. Nanjundaswamy (supra) the Hon’ble Supreme Court held that; "12. Indubitably, the plaint can and must be rejected inexercise of powers under Order 7 Rule 11(d) CPC on account of non- compliance with mandatory requirements or being replete with any institutional deficiency at the time of presentation of the plaint, ascribable to clauses (a) to (f) of Rule 11 of Order & CPC. In other 9 NV,J it C.R.P.No.l205of2024 words, the plaint as presented must proceed as a whole or can be rejected as a whole but not in part....” 26. There is no dispute with regard to the legal position. However, in view of the facts peculiar to the case, the said decisions on facts of the instant case are not helpful to the petitioners. 27. As rightly contended by the respondent, the element of fraud allegedly committed by the petitioners can be detected through trial. Moreover, the respondent asserts that her right to property through partition is not barred by limitation under Article 59 of the Limitation Act, 1963. 28. It is to be noted that the learned counsel for the respondent placed reliance on the decision in Srihari Hanumandas Totala vs. Hemant Vithal Kamat (supra) wherein it is held as follows: “28. For the above reasons, we hold that the plaint was not liable to be rejected under Order 7 Rule 11(d) and affirm the findings of the Trial Court and the High Court. We clarify however, that we have expressed no opinion on whether the subsequent suit is barred by the principles of res Judicata. We grant liberty to the appellant, who claims as an assignee of the bona fide purchaser of the suit property in an auction conducted by KSFC, to raise an issue of the maintainability of the suit before the Additional Civil Judge, Belgaum in OS No. 138/2008. The Additional Civil Judge, Belgaum shall consider whether a preliminary issue should be framed under Order XIV, and if so, decide it within a period of 3 months of raising the preliminary issue. In any event, the suit shall be finally adjudicated upon within the outer limit of 31 March 2022. 29. For the above reasons, we dismiss the appeal and affirm the impugned judgment and order of the High Court dated 18 January 10 NV,j^ C.R.P.No.1205 Of2024 2021. The application under Order 7 Rule 11 of the CPC shall stand dismissed. There shall be no orders as to costs. ” 29. In Saranpal Kaur Anand vs. Praduman Singh Chandhok (supra) the Hon’ble Supreme Court held that; “31. The learned Senior Counsel Mr. Shyam Divan for the appellant- original plaintiff has made following submissions: (I) Limitation being a mixed question of facts and law, the plaint could not be rejected under Order VII Rule 11(d) CPC. (ii) An application under Order VII Rule 11(d) ought to be decided solely on the basis of the averments made in the plaint and not on the basis of the written statements and other documents or material. (Hi) A case involving disputed questions of facts cannot be decided by the way of preliminary issue under Order XIV Rule 2 of the CPC. The issue of limitation cannot be treated as a pure question of law under Order XIV Rule 2(2), in view of the settled legal position. (iv) Once fraud has been pleaded in the suit, the plaint cannot be rejected without affording an opportunity to the parties to adduce the evidence. (v) The Single Bench and the Division Bench had committed gross error in referring to the documents which were not part of the plaint in the impugned orders. The Single Bench was required to first decide the applications of the plaintiff seeking amendments in the prayer clause and the cause of action clause of the plaint, before deciding the preliminary issue framed by it. (vi) The Division Bench had travelled beyond the scope of appeal by relying upon the provisions contained in Crder XII 11 NV,J C.R.P.No.l205of2024 Rule 6 for rejecting the plaint of the appellant-plaintiff, though it was not the issue before the Single Bench. Even otherwise there was no admission made by the plaintiff in the plaint or otherwise which would entitle the appellate court to pass a Judgment dismissing the suit of the plaintiff. (vii) Mr. Divan, learned senior advocate for the appellant- plaintiff had drawn the attention of the court to the documents referred by the Single Bench and Division Bench which not part of the plaint. He also drew the attention of the court to the erroneous findings recorded by the Division Bench while confirming the order passed by the Single Bench. were (viii) Reliance has been placed by the learned senior advocate Mr. Divan on the various Judgments of this court to buttress his submission that the plaintiff having alleged commission of fraud, and the issue of limitation being a mixed question of fact and law, the plaint could not be rejected under Order VII Rule 11 (d) of the CPC. Order XIV Rule 2 also does not confer any Jurisdiction upon the court to try the issue of limitation preliminary issue, the same being not a pure question of law. as a 37. In case of Salim Bhai and Ors. Vs. State of Maharashtra and Ors., it was made clear that for the purpose of deciding an application under clauses (a) and (d) of Rule 11 of Order VII, CPC, the averments in the plaint are germane; the plea taken by the defendant in the written statement would be wholly irrelevant. Similar view has been taken by this Court in case of Soumitra Kumar Sen Vs. Shyamal Kumar Sen and Ors. 7, in para 9 thereof, it was observed as under:- “9. In the first instance, it can be seen that insofar as relief of permanent and mandatory injunction is concerned that is based on a different cause of action. At the same time that kind of relief can be considered by the trial court only if the plaintiff is able to establish his locus standi to bring such a suit. If the averments made by the appellant in their written statement are 12 C.R.P.No.1205 of2024^ correct, such a suit may not be maintainable in as much as, as per the appellant it has already been decided in the previous two suits that respondent no. 1/plaintiff retired from the partnership firm much earlier, after taking his share and it is the appellant (or appellant and respondent no. 2) who are entitled to manage the affairs of M/s. Sen Industries. However, at this stage, as rightly pointed out by the High Court, the defense in the written statement cannot be gone into. One has to only look into the plaint for the purpose of deciding application Order VII Rule 11, CPC. It is possible that in a cleverly drafted plaint, the plaintiff has not given the details about of 2008 which has been decided under Suit No. 268 against him. He has totally omitted to mention about Suit No. 103 of 1995, the judgment wherein has attained finality. In that sense, the plaintiff/respondent no. 1 may be guilty of suppression and concealment. If the averments made by the ultimately found to be correct. However, appellant are as per the established principles of law, such a defence projected in the written statement cannot be looked Into while under Order VII Rule 11, CPC. ” deciding application 30. In the case of Vaish Aggarwal Panchayat the Hon’ble Supreme Court held that: vs. Inder Kumar (supra) “15. The three-Judge Bench opined that there opinion and thereafter the matter came back to the Division Bench adjudication. The Division Bench reproduced what has by the three-Judge Bench. It is as unden- “Before the three-Judge Bench, stated as follows: was no conflict of for been stated counsel for both the parties ‘...It is not the case of either side that as an absolute 11(d) can sides state that proposition an application under Order 7 and Rule never be based on the law of limitation. Both 13 NV,J y C.R.P.No.1205 of 2024 the impugned judgment is based on the facts of this particular case and the question whether or not an application under Order 1 Rule 11(d) could be based on law of limitation was not raised and has not been dealt with. Both sides further state that the decision in this case will depend upon the facts of this case. ” 16. After so stating, the Division Bench opined that in the facts of the said case, the suit couid not be dismissed as barred by limitation without proper pleadings, framing of issue on limitation and taking evidence, for question of limitation is a mixed question of fact and taw and on ex-facie reading of the plaint it couid not be held that the suit M/as barred by time. 1 17. Coming to the case at hand we find that the allegations in the plaint are absolutely different. There is an asseveration of fraud and collusion. There is an assertion that in the earlier suit a decree came to be passed because of fraud and coilusion. In such a fact situation, in our considered opinion, the High Court has fallen Into error by expressing the view that the piea of res judicata was obvious from the piaint. In fact, a finding has been recorded by the High Court accepting the piea taken in the written statement. In our view, in the obtaining factual matrix there should have been a trial with regard to all the issues framed. ” 31 In Satti Parades! Samadhi and PiUayar Temple vs. M.Sankuntala (supra) the Hon’ble Supreme Court held that: “16. We have not expressed any opinion with regard to the issue of limitation except saying that the present issue could not have been taken up as a preliminary issue. As the suit is pending since 1997 we would request the learned Single Judge of the High Court of Madras to dispose of the suit as expeditiously as possible. ” 14 C.R.P.No.1205 of2024 32. In view of reasons stated above and as per the principles laid down by the Hon'ble Apex Court as stated supra, the present Civil Revision Petition is devoid of merits and liable to be dismissed. 33. Accordingly, Civil Revision Petition is dismissed. There shall be no order as to costs. As a sequel, miscellaneous petitions, if any, pending shall stand closed. SD/- N.NAGAMMA ASSISTANT REGISTRAR //TRUE COPY// SECTION OFFICER To. 1. The Additional Civil Judge(Senior Division) district. 2. One CC to Ms. Ayesha Azma S Advocate [OPUC] 3. One CC to Sri. SS Rama Krishna Prasad Advocate 4. three CD COPIES Ongole, Prakasam [OPUC] stu TAC HIGH COURT DATED:10/01/2025 ORDER CRP.No.1205 of 2024 % ^ 18 FEB 2025 ^ Current section DISMISSING THE CIVIL REVISION PETITION