SOPAN NIVRUTTI VIGHEversusISHWAR NIVRUTTI VIGHE AND OTHERS

2026:BHC-AUG:862




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                        IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                                   BENCH AT AURANGABAD

                         CIVIL REVISION APPLICATION NO. 153 OF 2024

                          Sopan Nivrutti Vighe                             .. Applicant

                                Versus

                          Ishwar Nivrutti Vighe and others                 ..   Respondents

                   Shri Amol S. Gandhi, Advocate for the Applicant.

                                         CORAM : SHAILESH P. BRAHME, J.
                                          DATE : 08TH JANUARY, 2026.

                   FINAL ORDER :


                   .      Heard learned counsel Mr. Gandhi for the applicants.


                   2.     Present civil revision application is directed against order
                   dated 04.11.2023 passed below Exhibit 14 in R.C.S. No. 41 of
                   2023, rejecting application preferred under Order VII Rule 11 of
                   the Code of Civil Procedure (for the sake of brevity and
                   convenience hereinafter referred as to the “C.P.C.”).


                   3.     The respondent No. 1 has filed R.C.S. No. 41 of 2023 for
                   following reliefs :


                         अ)   वादींचा दावा मंजुर करण्यात यावा.


                         ब)   वादी व प्रतिवादी यांची मयत आई हिचे हिश्यास आलेल्या
                              मिळकतीचे वारसा हक्काने वादी प्रतिवादी यांचे दरम्यान वाटप होवुन
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          मिळावे.


     क)   दिनांक २१.०२.२०१८ रोजी प्रतिवादी नं १, ३ व ४ यांनी वादी
          प्रतिवादी यांची आई मयत मुक्ताबाई यांचेकडू न करुन घेतलेले
          बक्षीसपत्राचा दस्त नं. ६१०/२०१८ हा बोगस व बेकायदेशीर
          असून तो वादींवर बंधनकारक नाही, तो दस्त रद्द होवुन मिळावा व
          तसा जाहीर ठराव होवुन मिळावा.


     ड)   दावा मिळकतीचे रे. मु. नं. २२०/२००७ चे अंमलबजावणी
          झाल्याशिवाय (फायनल हुकूमनामा) व मिळकतीचे प्रत्यक्षात
          चर्तुसिमा व कब्जा निश्चित होईपावेतो व तसेच वादीचे संमतीविना
          कोणत्याही प्रकारे हस्तांतर प्रतिवादी नं १ व २ यांनी करु नये असा
          निरंतरचा ताकीद मनाई हुकूम प्रतिवादी नं १ व २ यांचेविरुध्द
          मिळावा.


     इ)   वेळप्रसंगी दाव्यात दरु
                              ु स्ती करण्याची परवानगी असावी.

     ई)   इतर योग्य ते न्यायाचे हुकूम वादी यांचे लाभात व्हावेत.


4.    Previously R.C.S. No. 220 of 2007 was filed by the
respondent No. 1 for partition in respect of land gut No. 150/1
against applicant and the siblings. A compromise decree was
passed on 14.01.2018.           The parties were allotted shares.
Muktabai – mother and sisters Satyabhamabai and Kamalbai
were together allotted 63R of land. Thereafter on 21.02.2018,
Muktabai and other sisters executed registered gift deed in
favour of the applicant in respect of the share which they
received in partition.         In the above backdrop, applicant
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submitted application Exhibit 14 U/O VII Rule 11 of the C. P. C.
on the ground that the cause of action is illusory and suit is
hopelessly barred by limitation.          By the impugned order
application Exhibit 14 came to be rejected.


5.    Learned counsel for the applicant submits that gift deed
was executed on 21.02.2018 by mother and the sisters of the
applicant in his favour for which the respondent No. 1 – plaintiff
was not concerned. He was aware of the same. There was no
question of issuing any notice for effecting any mutation entry.
It is contended that the cause of action particularly, the mutation
and the knowledge stated in para Nos. 3 and 5 is illusory and
articulated by cleaver drafting to overcome the impediment of
limitation. It is further submitted that the claim for partition is
totally untenable. The respondent No. 1 has taken inconsistent
pleas regarding decree of partition passed in previous limitation.
It is further submitted that a vexatious suit has been filed, which
needs to be nipped in the bud.           Reliance is placed on the
judgment of the Supreme Court in the matter of Shri Mukund
Bhavan Trust and others Vs. Shrimant Chhatrapati udayan Raje Pratapsinh
Maharaj Bhonsle and another reported in 2025(1) AIR Bom R 597.


6.    The respondent No. 1 - plaintiff has filed suit for the relief
of partition to the extent of share of deceased mother and
declaration that gift deed dated 21.02.2018 is bad in law and not
binding on the plaintiff. The averments of the plaint and the
documents annexed with it are the relevant material, which can
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be gone into for an inquiry U/O VII Rule 11 of the C. P. C. The
applicant has filed written statement and raised defence in
respect of maintainability of the suit in the wake of a compromise
decree passed in R.C.S. No. 220 of 2007, limitation and other
pleas.     At this juncture, the defence raised in the written
statement cannot be taken into account.


7.       It is trite law that for an inquiry U/O VII Rule 11 of the C.
P.   C.    a   meaningful    reading   of   the   plaint   is   relevant
consideration. It has been stated in para No. 3 of the plaint that
though a decree was passed in R.C.S. No. 220 of 2007, it has not
been executed and no partition has been effected by metes and
bounds for certain reasons. It is further stated that the gift deed
in question is bad in law for the reason that the physical
possession was not handed over to the donor.               It is further
averred that the plaintiff learnt about the gift deed after
receiving notice from the revenue authorities for effecting
mutation entry No. 3038.


8.       The plaintiff is stated to have no knowledge about the gift
deed. In para No. 5 of the plaint a specific cause of action is
stated imputing knowledge on or about 31.01.2023. I am of the
considered view that the plaint cannot be rejected on the ground
of limitation and full fledged trial is required to examine the
issue of limitation. I have already taken a view in the matter
of M/s Sandeep Construction and Developer, through its
Partners Sandip Ambadas Shinde and others Vs. Ashish
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Balasaheb Thote and others in Civil Revision Application
No. 173 of 2024. The relevant portion is as follows :

     “25.         The survey of the decisions referred above reveals the following
     principles :

            (i)       Limitationto challenge registered instrument would
                      ordinarily start running from date on which the
                      instrument was registered.

            (ii)      If the suit challenging the registered instrument is filed
                      beyond three years from the date of registration that
                      would not ipso facto lead to conclusion to reject the
                      plaint being barred by time. In that case date of
                      knowledge of the registered instrument is relevant one.

            (iii)     The claim of the plaintiffs with regard to the
                      knowledge of the essential facts giving rise to the cause
                      of action as pleaded will have to be accepted as correct.
                      At the stage of consideration of the application under
                      Order 7 Rule 11 the stand of the defendants in the
                      written statement would be altogether irrelevant.

            (iv)      If the plaintiff has pleaded date of knowledge
                      attempts made to redress the grievance before rushing to
                      Courts, the issue of limitation becomes mixed question
                      of law and facts which cannot be adjudicated at the
                      threshold stage U/O VII Rule 11 of the C. P. C.”

9.   The submissions of learned counsel Mr. Gandhi that the
respondent No. 1 was aware of the gift deed or he was not
required to be issued with notice are by way of the defence, which
cannot be taken into account at this juncture.                              Further
submission that whether inconsistent pleas in respect of
partition has been taken by the plaintiff and the relief of
partition is not permissible to be granted, can be looked into at
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the time of trial.


10.   I have not been shown any of the provisions of law which
disclose that relief in respect of partition is impermissible to be
granted. Even if the arguments of learned counsel in respect of
limitation are accepted, the partial rejection of plaint is not
permissible in view of the law laid down by the Supreme Court in
the matter of Central Bank of India Vs. Prabha Jain reported in 2025 INSC
95.


11.   Learned counsel has relied on the judgment of the
Supreme Court in the matter of Shri Mukund Bhavan Trust and others
Vs. Shrimant Chhatrapati udayan Raje Pratapsinh Maharaj Bhonsle and another
(supra). In that case suit was filed for various reliefs including
declaration, injunction and possession. My attention is adverted
to para No. 26 of the judgment. The ratio laid down therein
cannot be made applicable to the present case. The facts are
distinguishable.     In the case at hand plaintiff has specifically
pleaded that he was not aware of the gift deed and he learnt
about it for the first time on 31.01.2023. The judgment would
not enure to the benefit of the applicant.


12.   I do not find any perversity or patent illegality in rejecting
the application Exhibit 14.         The civil revision application is
rejected.

                                   [ SHAILESH P. BRAHME J. ]
bsb/Jan. 26