RAMJIBHAI KANJIBHAI PATEL vs ASHOKKUMAR DAYALAL PATEL
- Court
- Gujarat High Court
C/CRA/505/2026 JUDGMENT DATED: 19/10/2026
(GJHC240707392026)
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CIVIL REVISION APPLICATION NO. 505 of 2026
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE MAULIK J.SHELAT
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Approved for Reporting Yes No
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RAMJIBHAI KANJIBHAI PATEL
Versus
ASHOKKUMAR DAYALAL PATEL
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Appearance:
VMP LEGAL(7210) for the Applicant(s) No. 1
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CORAM: HONOURABLE MR. JUSTICE MAULIK J.SHELAT
Date : 19/10/2026
ORAL JUDGMENT
1. Heard Mr. Vimal M. Patel, learned advocate for the
petitioner.
2. This civil revision application is filed under Section 115
of Code of Civil Procedure, 1908 (for short “ CPC ”) at the
instance of original defendant of Regular Civil Suit No.1 of
2025 filed by respondent herein, wherein the trial Court vide
its order dated 31.07.2026 rejected the impugned application
filed by petitioner under Order 7 Rule 11 of CPC below Exh.21
in the aforesaid suit.
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3. Mr.Vimal Patel, learned advocate for the petitioner
would submit that bare reading of the plaint itself shows that
suit is time-barred and the trial Court ought to have rejected
the plaint. It is submitted that a revenue entry in question was
mutated in favor of the petitioner in the year 1991 and the
same is questioned by the respondent on the ground that it is
fraudulent one thereby the petitioner cannot derive any title
over the suit land. Since the suit in question instituted in the
year 2025, it is hopelessly time barred.
3.1 Mr. Patel, learned advocate for the petitioner would
further submit that so far as the adoption of the respondent-
plaintiff is concerned, it is not in accordance with the
provisions of Hindu Adoptions and Maintenance Act, 1956
(herein after referred as “ the Act 1956 ”) and such aspect
ought to have been considered by the trial Court as the
plaintiff has no right to sue.
3.2 Making the above submission, Mr.Patel, learned
advocate would request this Court to entertain this revision
application.
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4. Having heard the learned advocate for the petitioner and
upon perusal of the impugned order, prima-facie, it appears
that respondent/plaintiff instituted suit seeking a declaration
and a permanent injunction against the petitioner, who
happens to be brother of one Mr. Dayalal Kanjibhai Patel, who
adopted him on 24.01.1989. It is a case of the respondent-
plaintiff that the petitioner herein after death of said Dayalal
(adoptive father of plaintiff) fraudulently entered into and
mutated his name in revenue record qua the suit land, which
owned by Dayalal Kanjibhai Patel. It is undisputed fact that
said mutation in the revenue record was made in the year
1991. Since the relationship between the plaintiff and the
defendant being nephew and uncle respectively, as per the
case of the plaintiff, he reposed faith in defendant being his
uncle and did not check the revenue record at the relevant
point of time. Nonetheless, after his retirement, from ST
Corporation, upon verifying the revenue record on
12.08.2024, he came to know about such entry stand in the
favor of defendant. Prima facie , such fact needs to be proved
by the plaintiff, for which he must be allowed to lead evidence.
5. Having gone through the copy of the plaint, which is
placed for ready perusal of this Court, a bare reading of the
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averments made in the plaint, it cannot be argued by the
defendant that the suit is hopelessly time-barred. Whether the
knowledge of the mutation entry in favour of the petitioner
(defendant) gathered by the plaintiff in the year 1991 or
thereafter and/or whether in the year 2024 as stated in the
plaint, is a mixed question of fact and law. It is also well
settled position of law that issue of limitation is ordinarily
considered as a mixed question of law. At the time of exercise
its power under Order 7 Rule 11 of CPC, the trial Court is only
required to take note of the averments made in the plaint
rather any defense set up by the defendant. According to my
view, the issue raised before me is squarely covered by full
bench decision of the Hon’ble Apex Court in the case of
Chhotanben Vs. Kiritbhai Jalkrushnabhai Thakkar reported in
(2018) 6 SCC 422, wherein the Apex Court observed and held
thus:
“14. 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 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 appellant-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
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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.
15. What is relevant for answering the matter in issue in the context of
the application under Order 7 Rule 11(d) CPC, 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 application filed by them, cannot be the
basis to decide the application under Order 7 Rule 11(d). Only the
averments in the plaint are germane. It is common ground that the
registered sale deed is dated 18-10-1996. 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 appellant-plaintiffs is that until 2013 they had no knowledge
whatsoever regarding execution of such sale deed by their brothers,
original Defendants 1 and 2, in favour of Jaikrishnabhai Prabhudas
Thakkar or Defendants 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 Defendants 1 and 2) calling upon them to stop
interfering with their possession and to partition the property and
provide exclusive possession of half (½) portion of the land so
designated towards their share. However, when they realised that the
original Defendants 1 and 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 1-Defendant 5 for rejection of the
plaint under Order 7 Rule 11(d). That view commends to us.”
(Emphasis supplied)
6 . Having gone through the reasons assigned by the trial
Court, I am in complete agreement inasmuch as the suit
cannot be thrown out at this stage, rather the parties are
required to lead their respective evidence on the issue of
limitation. Accordingly, I do not find any merit in the revision
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application.
7. As far as the second issue raised before this Court that
adoption of plaintiff is void as not in accordance with
provisions of the Act, 1956 is concerned, it is also undisputed
fact that such point was never raised before the trial Court, at
least not raised in the impugned application filed under Order
7 Rule 11 of CPC.
8. At this stage, Mr. Patel, learned advocate for the
petitioner would request this Court that if so desire, the
petitioner may be permitted to file an appropriate application
seeking appropriate relief under Order 7 Rule 11 by raising
the issue of invalid adoption of the plaintiff under the Act,
1956. Since the issue which was never raised before the trial
Court and now sought to be raised for the first time before
this Court, it is appropriate that if permissible in law, such
point may be raised before the trial Court by way filing an
appropriate application under Order 7 Rule 11 of CPC. As and
when such application will be filed by the petitioner, the same
shall be decided by the trial Court by giving opportunity to all
parties concerned, but strictly in accordance with law.
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9. In view of the foregoing discussion and reasons, I do not
find any jurisdictional error committed by the trial Court while
passing the impugned order. Consequently, the present
Revision Application is not entertained and it is dismissed in
limine. No order as to costs.
(MAULIK J.SHELAT,J)
A. B. VAGHELA
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