Court No. - 33
Case :- MATTERS UNDER ARTICLE 227 No. - 7911 of 2018 Petitioner :- Kanchhind And 03 Others Respondent :- Chandra Pal And 03 Others Counsel for Petitioner :- Rekha Pundir Counsel for Respondent :- Ashish Kumar Singh Hon'ble Manoj Misra,J.
Heard learned counsel for the petitioner; Sri Ashish Kumar Singh for the respondents; and have perused the record.
The instant petition has been filed for setting aside the order dated 06.09.2017 passed by the Civil Judge (Junior Division), Second, Hapur in Original Suit No.31 of 2015 and the order dated 19.05.2018 passed by the District Judge, Hapur in Civil Revision No.103 of 2017.
A perusal of the record would reveal that Original Suit No.31 of 2015 was instituted by the respondents 1 and 4 for cancellation of unregistered will deed dated 14.10.1989, allegedly executed by the father of the plaintiffs in favour of the defendants 1, 2 and 3, and for cancellation of the sale deed dated 01.10.2011 executed by the defendants 1, 2 and 3 in favour of the defendant no.4.
In the plaint it was alleged that the father of the plaintiffs had made arrangement of the land in question in favour of the defendants 1, 2 and 3; that the defendants 1, 2 and 3 had thereafter been regularly providing the profits arising from the land; that in the year 2014, it was discovered that the defendants 1, 2 and 3, after the death of the father of the plaintiffs, by setting up an unregistered Will of the father of the plaintiffs dated 14.10.1989, got their names mutated in the revenue record; and, thereafter, taking advantage of the revenue entry, executed sale deed in favour of the defendant no.4 on 01.10.2011.
The defendants put in appearance in the suit proceedings and moved an application under Order 7 Rule 11 CPC by claiming that the suit proceeding was barred by limitation as admittedly will deed was executed in the year 1989 and since the year 1990 the defendants were in occupation of the land.
The trial court vide order dated 06.09.2017 rejected the application under Order 7 Rule 11 CPC by observing that the plaint allegations disclose cause of action and on the basis of plaint allegations it cannot be concluded that the suit is barred by limitation. Moreover, the said issue was a mixed question of law and fact which can appropriately be addressed only after receipt of evidence.
Upon rejection of the application under Order 7 Rule 11 CPC, the petitioner filed Civil Revision No.103 of 2017 in the court of District Judge, Hapur. Learned District Judge after examining the plaint allegations found that from the allegations it cannot be said that the suit was barred by law and therefore it found no legal error in the order of the trial court.
Assailing the order passed by the trial court as well as by the revisional court, the learned counsel for the petitioner has submitted that from the plaint allegations it appears that the suit land had been in possession of the defendant from the year 1990 and therefore the suit instituted in the year 2015 was squarely barred by limitation and hence the application under Order 7 Rule 11 CPC was liable to be accepted and the plaint was liable to be rejected.
On the other hand, the learned counsel for the respondents defended the order passed by the courts below.
I have given thoughtful consideration to the submission of the learned counsel for the parties.
It is well settled legal position that while considering whether the plaint is liable to be rejected under Order 7 Rule 11 CPC, it is the plaint allegations alone that are to be considered. The defence plea of the defendants is not to be taken into consideration at the stage of consideration of an application under Order 7 Rule 11 CPC.
From the plaint allegations it cannot be said that the suit was barred by law or that no cause of action was made out to institute the suit. As to whether the possession of the defendants was since the year 1990 in their own capacity, which was adverse to the plaintiffs, or was as a care taker in permissive occupation, is a matter of evidence which is to be considered after evidence is led by the parties. Likewise, whether suit is barred by limitation or by any other provision of law can be pleaded and proved at the appropriate stage by getting it taken up and decided as an issue in the suit.
Under the circumstances, the view taken by the courts below that the issue raised by the defendants was a mixed question of law and fact for adjudication of which evidence need be recorded; and that application for rejection of plaint under Order VII Rule 11 CPC is therefore liable to be rejected, cannot be faulted. The petition is dismissed.
Order Date :- 30.10.2018/AKShukla/-