Case Note & Summary
The appellant, Rukhiben Devaji Rajaji Thakor, filed a First Appeal under Section 96 of the Code of Civil Procedure, 1908, challenging the judgment and decree dated 22.11.2018 passed by the learned Additional Senior Civil Judge, Kalol, in Special Civil Suit No. 113 of 2011, whereby her suit for cancellation of sale deed, recovery of possession, and permanent injunction was dismissed. The suit property was ancestral land bearing Block/Survey No. 166 admeasuring 0-25-29 Hectare-Are-Square Meter situated at Village Jethlaj, Taluka Kalol, District Gandhinagar. The plaintiff and defendant Nos. 1 and 2 were legal heirs of late Devaji Rajaji Thakor, the recorded owner. The plaintiff alleged that defendant Nos. 1, 2/1 to 2/4, in collusion with defendant No. 3, executed a registered sale deed dated 19.04.2008 without her knowledge and consent, and without paying her share of the sale consideration. She also contended that revenue entries were mutated without notice under Section 135(d) of the Gujarat Land Revenue Code. The trial court dismissed the suit, holding that the plaintiff failed to prove her share and that the suit was barred by limitation. The High Court framed issues including whether the trial court erred in dismissing the suit, whether the plaintiff had a share in the ancestral property, and whether the sale deed was voidable. The appellant argued that the suit property was ancestral and she had a coparcenary right, and that the sale deed was executed without her consent. The respondents argued that the plaintiff had no share and the suit was time-barred. The High Court analyzed the evidence and found that the plaintiff was a coparcener and the sale deed was executed without her consent, making it voidable. The court also noted that the revenue entries were mutated without notice to the plaintiff. The High Court allowed the appeal, set aside the trial court's judgment, and decreed the suit, ordering cancellation of the sale deed, recovery of possession, and permanent injunction in favor of the plaintiff.
Headnote
A) Property Law - Ancestral Property - Coparcenary Rights - Hindu Succession Act, 1956 - The suit property being ancestral, the plaintiff as a coparcener had a share by birth. The sale deed executed without her consent and without notice under Section 135(d) of the Gujarat Land Revenue Code is voidable. The trial court erred in dismissing the suit on grounds of limitation and adverse possession without considering these aspects. (Paras 1-10) B) Limitation Act - Cancellation of Sale Deed - Article 59 of Limitation Act, 1963 - The suit for cancellation of sale deed was filed within three years from the date of knowledge of the sale deed. The plaintiff gained knowledge only when she attempted to cultivate the land and found the defendants in possession. The trial court's finding on limitation is erroneous. (Paras 11-15) C) Gujarat Land Revenue Code - Notice under Section 135(d) - Section 135(d) of Gujarat Land Revenue Code - The revenue entries were mutated without issuing notice to the plaintiff, who was a co-owner. This vitiates the mutation and the subsequent sale deed. The trial court failed to appreciate this procedural irregularity. (Paras 16-20)
Issue of Consideration
Whether the trial court erred in dismissing the suit for cancellation of sale deed, recovery of possession, and permanent injunction without properly considering the plaintiff's share in ancestral property and the lack of notice under Section 135(d) of the Gujarat Land Revenue Code.
Final Decision
The High Court allowed the appeal, set aside the judgment and decree dated 22.11.2018 passed by the learned Additional Senior Civil Judge, Kalol, in Special Civil Suit No. 113 of 2011, and decreed the suit in favor of the appellant, ordering cancellation of the sale deed dated 19.04.2008, recovery of possession of the suit property, and permanent injunction against the defendants.
Law Points
- Cancellation of sale deed
- ancestral property
- coparcenary rights
- notice under Section 135(d) of Gujarat Land Revenue Code
- limitation for filing suit
- adverse possession
- Section 96 CPC
