P.N.Ravindran, J.
Defendants 1, 2 and 6 in O.S.No.66 of 2005 on the file of the Wakf Tribunal, Kozhikode are the petitioners in this civil revision petition. The first respondent is the plaintiff and respondents 2 to 8 are the other defendants therein. The brief facts of the case are as follows:-
2. The first respondent/plaintiff instituted the suit initially in the Court of the Munsiff, II-A, Kozhikode on 21.5.1999. It was taken on file and numbered as O.S.No.426 of 1999. The relief prayed for in the suit as filed was for a declaration that the plaintiff society is the owner of the plaint schedule property. The plaintiff had also sought a decree directing the defendants to surrender possession of the plaint schedule property and to put the plaintiff in possession thereof. Long thereafter, the plaintiff filed I.A.No.531 of 2004 to amend the plaint by incorporating an averment to the effect that the plaint schedule property is Wakf property. Simultaneously, the plaintiff filed I.A.No.530 of 2004 under Order VII rule 10 of the Code of Civil Procedure for an order returning the plaint for proper presentation before the Wakf Tribunal, Kozhikode which had by then been established. The aforesaid applications which were filed on 25.1.2004 were allowed by orders passed on 27.2.2004. The plaintiff thereupon took back the plaint but represented it in the Wakf Tribunal, Kozhikode only on 11.11.2005. Before the Wakf Tribunal, the suit was renumbered as O.S.No.66 of 2005.
3. Upon receipt of summons, defendants 1, 2 and 6 entered appearance and filed I.A.No.700 of 2005 under Order VII rule 11 (d) of the Code of Civil Procedure wherein they prayed that the plaint may be rejected for the reason that it is barred by limitation. The first respondent/plaintiff opposed the application by filing a counter statement. It was contended that the suit is one for recovery of possession on the strength of title, that the period of limitation prescribed in the Limitation Act, 1963 is 12 years from the date of dispossession and therefore, the suit as filed is well within time. The trial court considered the rival contentions and dismissed I.A.No.700 of 2005 by order passed on 7.8.2006. The trial court held that the plaintiff has in the plaint averred that it was forcibly dispossessed on 19.4.1999 and therefore, the suit being one for recovery of possession, the plaintiff has got 12 years' time to prefer a suit for recovery of possession on the strength of title. The said order is under challenge in this civil revision petition which was filed on 11.12.2006. In the interregnum, the defendants filed a written statement wherein in paragraphs 10 and 11 they have put forward the plea that the reliefs prayed for in the plaint cannot be granted for the reason that they are barred by limitation.
4. We heard Sri.K.M.Firoz, learned counsel appearing for the petitioners and Sri.K.Jayakumar, learned Senior Advocate appearing for the first respondent/plaintiff. Sri.K.M.Firoz, learned counsel appearing for the petitioners contended referring to the reliefs sought in the plaint and ground L of the civil revision petition that the main relief sought being one for declaration of title, as the title deed stands in the name of the predecessor-in-interest of the petitioners, the instant suit is governed by Article 58 of the Limitation Act and not by Article 64 and therefore, as the suit is not one instituted within 3 years from the date of dispossession, the court below ought to have held that it is barred by limitation. Per contra, Sri.K.Jayakumar, learned Senior Advocate appearing for the first respondent/plaintiff contended referring to Order VII rule 11(d) of the Code of Civil Procedure and the decision of the Apex Court in C.Natrajan v. Ashim Bai and Another [(2007) 14 SCC 183] that for the purpose of considering whether a suit is barred under any law in force in an application filed under Order VII rule 11(d) of the Code of Civil Procedure, all that the court is required to go into is the averments in the plaint and not the defence set up by the defendants, that the plaintiff has in the plaint traced its title to the property and has also referred to acts of possession exercised by it and has in categorical terms averred that it was forcibly dispossessed on 19.4.1999, that the plaintiff has in the plaint averred that the predecessor-in-interest of the petitioners was the Secretary of the trust, that the plaint schedule property was purchased for and on behalf of the trust in the name of the predecessor-in-interest of the petitioners and therefore, going by the averments in the plaint it cannot be said that the instant suit which was represented in the Wakf Tribunal on 11.11.2005, is barred by limitation.
5. We have considered the submissions made at the Bar by learned counsel appearing on either side. We have also gone through the pleadings and the materials on record including a copy of the plaint and the written statement which were made available to us by learned counsel appearing for the respective parties. A reading of the plaint discloses that the plaintiff has traced its title to the plaint schedule property under a sale deed which stands in the name of the predecessor-in-interest of the petitioners. The plaintiff has also pleaded that it was in possession and enjoyment of the property and had even let out the building to various tenants. The plaintiff has in paragraph 5 of the plaint averred that the property was purchased in the name of its Secretary, Muhammed Aslam, who was the Secretary during those days, that it was he who was representing the society and that it was purchased by the society utilising its own funds. The plaintiff has also averred that it was always in possession and enjoyment of the plaint schedule property ever since the transaction and that the defendants have no manner of right therein. The plaintiff has in paragraph 7 of the plaint averred that while matters stood thus, on 19.4.1999 the defendants and their men forcibly dispossessed them.
6. The Apex Court has in C.Natrajan v. Ashim Bai and Another [supra] held that for the purpose of deciding whether the plaint is liable to be rejected under Order VII rule 11(d) of the Code of Civil Procedure, the averments in the plaint alone are relevant and at that stage, the court would not be entitled to consider the case of the defence. As stated earlier, the plaintiff has in the plaint categorically averred that while it was in possession of the plaint schedule property, it was forcibly dispossessed on 19.4.1999. Going by the averments in the plaint the instant suit which was represented in the Wakf Tribunal on 11.11.2005 cannot by any stretch of imagination be said to be barred by limitation. The contention of the defendants that it is Article 58 of the Limitation Act that applies and not Article 64, cannot in our opinion be gone into at the stage of considering whether the plaint is liable to be rejected as barred by limitation under Order VII rule 11(d) of the Code of Civil Procedure. We therefore find no grounds to interfere with the impugned order. However, we deem it appropriate to observe that notwithstanding the view that we have taken, it will be open to the defendants to raise the plea that the suit is barred by limitation and therefore, the reliefs prayed for in the suit cannot be granted at the time of trial and also to press the said contention at the time of hearing.
The civil revision petition fails and is accordingly dismissed with the aforesaid observations. Having regard to the fact that the suit was first instituted in the year 1999 and nearly 9 years have passed after the suit was instituted in the Wakf Tribunal, Kozhikode, we direct the Wakf Tribunal to try and dispose of the suit within four months from the date of receipt of a copy of this order. Registry to communicate a copy of this order.
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P.N.RAVINDRAN JUDGE
vpv
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P.B.SURESH KUMAR JUDGE