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CASE NO.: Appeal (civil)  4803 of 2007

PETITIONER: C. Natrajan

RESPONDENT: Ashim Bai & Anr

DATE OF JUDGMENT: 11/10/2007

BENCH: S.B. Sinha & Harjit Singh Bedi

JUDGMENT: J U D G M E N T (Arising out of SLP (C) No.18129 of 2006)

S.B. Sinha, J.

1.      Leave granted.

       Appellant herein filed a suit against the respondents claiming, inter  alia, for the following reliefs : \023(a) For declaration of plaintiff\022s title to the suit  property; (b)     For consequential injunction, restraining the  defendants, their men, agents, servants, etc.  from in any manner interfering with the  plaintiff\022s peaceful possession and  enjoyment of the suit property. (c)     Alternatively, if for any reason this  Honourable court comes to a conclusion that  the plaintiff is out of possession, for  recovery of vacant possession of the suit  property; (d)     Directing the defendant to pay the cost of  this suit.\024

2.      The said suit was filed in the year 2001.  Cause of action of the said  suit was said to have arisen in 1994 when the defendants allegedly  trespassed over the suit property.  Respondent on or about 8.8.2001 filed an  application under Order VII Rule 11(d) of the Code of Civil Procedure  praying for rejection of the plaint on the premise that the suit was barred by  limitation, inter alia, stating : \0232.  I beg to submit that the Respondent/Plaintiff  in the plaint paragraph 4 with respect to the  question of limitation has averred that he had the  knowledge of the mistake with regard to the  boundaries in the sale deed only on 2.11.1998 for  the purpose of satisfying the court to admit the  plaint. 3.      I beg to submit that the averments are made  knowing to be false.  The following admitted facts  would clearly establish the same. (a)     The plaintiff admits in paragraph 3 (3 and 3)  that he had the defective title on 24.11.1974.   He further contended that mistake was  repeated again on 14.9.1979.  Such mistakes  even alter 2 decades has not been rectified  by any instrument.  The plaintiff lost his  right long before to rectify the alleged  mistake.  Now, he was misused and abused

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this Hon\022ble Court and filed the suit after the  period of limitation. (b)             The Respondent/Plaintiff filed the suit  describing the suit property in accordance to  his sale deed dated 14.9.1979 before the  District Munsif of Tambaram in OS No.501  of 1994 on 28.3.1994.  The said suit was  filed for the relief of permanent injunction  based on the sale deed and possession of the  sale property alleging that he was in  possession of the sale property.  We have  filed an application in IA No.805 of 1994 on  8.4.1994 to vacate the interim injunction  granted in IA No.604 of 1994 filed by the  Respondent/Plaintiff.  We have clearly  pointed out that the main issue was the  identification of the property.  Hence the  issue was decided in the interim application  by the learned district Munsif, Tambaram on  27.6.1994.  The learned District Munsif,  Tambaram gave a clear findings that the  Respondent/Plaintiff has to identify the  property. (c)             The Respondent plaintiff had clear  knowledge of the mistake with regard to the  boundaries not only on 8.4.1994 but also on  27.6.1994. (d)             Therefore, the suit reliefs are barred by  limitation.\024

3.      In the counter affidavit filed on behalf of the petitioner, it was stated :

\023This respondent further submits the points for  rejection of the plaint are untenable. This respondent never admits that he had defective  title in any of the paragraphs much less in para 3 of  the plaint.  It is stated that the description with  regard to boundaries is only a mistake. This respondent submits that Order VII Rule 11(d)  is not applicable to the facts of this case.  This suit  is filed for declaration and for permanent  injunction, alternatively for recovery of  possession.  The suit is filed within 12 years.   Moreover the suit for declaration and injunction is  also been filed within 3 years from the date of  judgment passed in O.S. No.501/1997 and O.S.  No.502/1997 on the file of District Munsif Judicial  Magistrate Alandur.  Hence, this suit is not barred  by any law.\024

4.      The learned Principal Subordinate Judge, Chengalpet, by reason of its  judgment and order dated 31.3.2006 rejected the said application of the  respondent, opining : \023The suit property as shown in the schedule to OS  No.502 of 2001 is found to be same as described in  the sale deed dated 149/1979 in favour of the  plaintiff and its patent documents of title.  Now the  plaintiff has described and suit property in the  schedule to the present plaint as per present lie on  the ground on the averments that the boundaries of  the property purchased by him under the sale deed  dated 14.9.1979 were wrongly mentioned for a

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larger extent, as the mistake crept patent title deed  dated 13.3.1964 and that the mistake come to his  knowledge only on 2.11.1998.  As held by the  Supreme Court in Propet and Kotecha property  VS.S.RI State Association reported in 15(4) CTC  489 averments in the plaint alone would be looked  into while considering an application for rejection  of plaint U.O. 7 Rule 11 CPC and that the plea  raised in the written statement are irrelevant at  such stage.  In the present case the plea of the  plaintiff that he came to know about the mistake  regarding the boundary description in the sale  dated 14.9.1979 only on whether he had  knowledge earlier is question of fact to be  considered during the trial in the suit.  As such the  plaint on .. is a mixed question of fact and law to  be considered during the trial by casting the issue  suitably. Hence the present petition for rejecting  the plaint is balance to be dismissed.  The point is  answered accordingly.\024

5.      Respondent preferred a civil revision petition thereagainst.  By reason  of the impugned order, a Division Bench of the High Court reversed the said  judgment of the Trial Court opining that the period of limitation, as per  Article 58 of the Limitation Act, expired in 1997 itself, stating : \023A perusal of the typed set of papers would show  that the present suit has been filed by the  respondent/plaintiff for the relief of declaration of  title of the suit property and consequently  injunction and in the alternative for recovery of  possession.  Article 58 of the Limitation Act  provides for three years as the limitation period to  initiate proceedings from the date of cause of  action, whereas Article 65 of the Act prescribes for  twelve years for a suit filed for possession of  immovable property or any interest therein based  on title.  The earlier suit filed by the petitioners in  OS No.502 of 1997 for permanent injunction has  been decreed as against the respondent herein and  it is only the revision petitioners are in continuous  possession.  The respondent filed the present suit  mainly for declaring his title to the suit property.   Thus, only Article 58 of the Limitation Act only  applicable and not Article 65 of the Act.   Admittedly, the suit is filed beyond the period of 3  years as contended by the learned counsel for the  petitioners and, therefore, the plaint itself is liable  to be rejected.\024

6.      Order VII Rule 11(d) of the Code of Civil Procedure reads as under :

\02311.Rejection of plaint.\027The plaint shall be  rejected in the following cases : (a) to (c)      ... (d)     where the suit appears from the statement in  the plaint to be barred by any law; (e) to (f)      ...\024

7.      An application for rejection of the plaint can be filed if the allegations  made in the plaint even if given face value and taken to be correct in their  entirety appear to be barred by any law.  The question as to whether a suit is

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barred by limitation or not would, therefore, depend upon the facts and  circumstances of each case.  For the said purpose, only the averments made  in the plaint are relevant.  At this stage, the court would not be entitled to  consider the case of the defence.  {See [Popat and Kotecha Property v. State  Bank of India Staff Association [(2005) 7 SCC 510]}. 8.      Applicability of one or the other provision of the Limitation Act per se  cannot be decisive for the purpose of determining the question as to whether  the suit is barred under one or the other article contained in the Schedule  appended to the Limitation Act. 9.      The question which was raised before the learned Trial Judge was  different from the question raised before the High Court.  Before the learned  Trial Judge, as noticed hereinbefore, the provisions of the Limitation Act  were brought in with reference to the identification of the property.  It was  not contended that the suit was barred by limitation in terms of Article 58 of  the Limitation Act, 1963.  The High Court, therefore, in our opinion, ex  facie committed an error in arriving on the aforementioned finding.  The  scope of applicability of the Limitation Act vis-‘-vis Order VII Rule 11 of  the Code of Civil Procedure has been considered in some recent decisions of  this Court to which we may advert to. 10.     In Popat and Kotecha Property v. State Bank of India Staff  Association [(2005) 7 SCC 510], this Court, inter alia, opined: \023Rule 11 of Order VII lays down an independent  remedy made available to the defendant to  challenge the maintainability of the suit itself,  irrespective of his right to contest the same on  merits. The law ostensibly does not contemplate at  any stage when the objections can be raised, and  also does not say in express terms about the filing  of a written statement. Instead, the word \023shall\024 is  used clearly implying thereby that it casts a duty  on the court to perform its obligations in rejecting  the plaint when the same is hit by any of the  infirmities provided in the four clauses of Rule 11,  even without intervention of the defendant. In any  event, rejection of the plaint under Rule 11 does  not preclude the plaintiffs from presenting a fresh  plaint in terms of Rule 13.\024

       It was further opined : \023When the averments in the plaint are considered  in the background of the principles set out in  Sopan Sukhdeo case the inevitable conclusion is  that the Division Bench was not right in holding  that Order VII Rule 11 CPC was applicable to the  facts of the case. Diverse claims were made and  the Division Bench was wrong in proceeding with  the assumption that only the non-execution of  lease deed was the basic issue. Even if it is  accepted that the other claims were relatable to it  they have independent existence. Whether the  collection of amounts by the respondent was for a  period beyond 51 years needs evidence to be  adduced. It is not a case where the suit from  statement in the plaint can be said to be barred by  law. The statement in the plaint without addition or  subtraction must show that it is barred by any law  to attract application of Order VII Rule 11. This is  not so in the present case.\024

11.     However, we may notice that another Division Bench of this Court, in  Balasaria Construction (P) Ltd. v. Hanuman Seva Trust & Ors. [(2006) 5  SCC 658], stated the law thus : \023After hearing counsel for the parties, going  through the plaint, application under Order VII  Rule 11(d) CPC and the judgments of the trial

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court and the High Court, we are of the opinion  that the present suit could not be dismissed as  barred by limitation without proper pleadings,  framing of an issue of limitation and taking of  evidence. Question of limitation is a mixed  question of law and fact. Ex facie in the present  case on the reading of the plaint it cannot be held  that the suit is barred by time. The findings  recorded by the High Court touching upon the  merits of the dispute are set aside but the  conclusion arrived at by the High Court is  affirmed. We agree with the view taken by the trial  court that a plaint cannot be rejected under Order  VII Rule 11(d) of the Code of Civil Procedure.\024

12.     In the said decision, it may be placed on record, on the question as to  whether Order VII Rule 11(d) can be applied when a suit was filed on the  premise that a suit is barred by limitation, this Court noticed : \023This case was argued at length on 30-8-2005.  Counsel appearing for the appellant had relied  upon a judgment of this Court in N.V. Srinivasa  Murthy v. Mariyamma for the proposition that a  plaint could be rejected if the suit is ex facie barred  by limitation. As against this, counsel for the  respondents relied upon a later judgment of this  Court in Popat and Kotecha Property v. State  Bank of India Staff Assn. in respect of the  proposition that Order VII Rule 11(d) was not  applicable in a case where a question has to be  decided on the basis of fact that the suit was barred  by limitation. The point as to whether the words  \023barred by law\024 occurring in Order VII Rule 11(d)  CPC would include the suit being \023barred by  limitation\024 was not specifically dealt with in either  of these two judgments, cited above. But this point  has been specifically dealt with by the different  High Courts in Mohan Lal Sukhadia University v.  Priya Soloman, Khaja Quthubullah v. Govt. of  A.P., Vedapalli Suryanarayana v. Poosarla  Venkata Sanker Suryanarayana, Arjan Singh v.  Union of India wherein it has been held that the  plaint under Order VII Rule 11(d) cannot be  rejected on the ground that it is barred by  limitation. According to these judgments the suit  has to be barred by a provision of law to come  within the meaning of Order VII Rule 11 CPC. A  contrary view has been taken in Jugolinija Rajia  Jugoslavija v. Fab Leathers Ltd. , National  Insurance Co. Ltd. v. Navrom Constantza , J. Patel  & Co. v. National Federation of Industrial Coop.    Ltd. and State Bank of India Staff Assn. v. Popat &  Kotecha Property. The last judgment was the  subject-matter of challenge in Popat and Kotecha  Property v. State Bank of India Staff Assn. This  Court set aside the judgment and held in para 25 as  under: (SCC p.   517)  

\02325 . When the averments in the plaint are  considered in the background of the  principles set out in Sopan Sukhdeo case the  inevitable conclusion is that the Division  Bench was not right in holding that Order  VII Rule 11 CPC was applicable to the facts  of the case. Diverse claims were made and  the Division Bench was wrong in

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proceeding with the assumption that only the  non-execution of lease deed was the basic  issue. Even if it is accepted that the other  claims were relatable to it they have  independent existence. Whether the  collection of amounts by the respondent was  for a period beyond 51 years needs evidence  to be adduced. It is not a case where the suit  from statement in the plaint can be said to be  barred by law. The statement in the plaint  without addition or subtraction must show  that it is barred by any law to attract  application of Order VII Rule 11. This is not  so in the present case.\024

13.     If the plaintiff is to be granted a relief of recovery of possession, the  suit could be filed within a period of 12 years.  It is one thing to say that  whether such a relief can be granted or not after the evidences are led by the  parties but it is another thing to say that the plaint is to be rejected on the  ground that the same is barred by any law.  In the suit has been filed for  possession, as a consequence of declaration of the plaintiff\022s title, Article 58  will have no application.  14.     Learned counsel appearing on behalf of the respondent, however,  placed strong reliance upon a decision of this Court in S.M. Karim v. Mst.  Bibi Sakina [(1964) 6 SCR 780] to contend that alternative plea cannot be  considered for arriving at a conclusion that he has been dispossessed.   15.     The law of limitation relating to the suit for possession has undergone  a drastic change.  In terms of Articles 142 and 144 of the Limitation Act,  1908, it was obligatory on the part of the plaintiff to aver and plead that he  not only has title over the property but also has been in possession of the  same for a period of more than 12 years.  However, if the plaintiff has filed  the suit claiming title over the suit property in terms of Articles 64 and 65 of  the Limitation Act, 1963, burden would be on the defendant to prove that he  has acquired title by adverse possession.   16.     In Md. Mohammad Ali (dead) by LRs. v. Jagdish Kalita and Ors.  [(2004) 1 SCC 271], it was held : \023By reason of the Limitation Act, 1963 the legal  position as was obtaining under the old Act  underwent a change. In a suit governed by Article  65 of the 1963 Limitation Act, the plaintiff will  succeed if he proves his title and it would no  longer be necessary for him to prove, unlike in a  suit governed by Articles 142 and 144 of the  Limitation Act, 1908, that he was in possession  within 12 years preceding the filing of the suit. On  the contrary, it would be for the defendant so to  prove if he wants to defeat the plaintiff\022s claim to  establish his title by adverse possession.\024            {See also P.T. Munichikkanna Reddy & Ors. v. Revamma & Ors.  [(2007) 6 SCC 29]; Binapani Paul v. Pratima Ghosh & Ors. [(2007) 6 SCC  100]; Kamakshi Builders v. Ambedkar Educational Society & Ors. [AIR  2007 SC 2191] and Bakhtiyar Hussai (dead) throuth LRs v. Hafiz Khan &  Ors. [CA Nos.497-498/01 decided on 24.09.2007]}. 17.     In S.M. Karim (supra), this Court was considering a question of  Benami as also adverse possession.  In the aforementioned context, it was  opined : \023Adverse possession must be adequate in  continuity, in publicity and extent and a plea is  required at the least to show when possession  becomes adverse so that the starting point of  limitation against the party affected can be found.  There is no evidence here when possession became  adverse, if it at all did, and a mere suggestion in  the relief clause that there was an uninterrupted

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possession for "several 12 years" or that the  plaintiff had acquired "an absolute title" was not  enough to raise such a plea. Long possession is not  necessarily adverse possession and the prayer  clause is not a substitute for a plea. The cited cases  need hardly be considered, because each case must  be determined upon the allegations in the plaint in  that case. It is sufficient to point out that in Bishun  Dayal v. Kesho Prasad and another (A.I.R. 1940  P.C. 202), the Judicial Committee did not accept  an alternative case based on possession after  purchase without a proper plea.\024

    {See also Prem Lala Nahata & Anr. v. Chandi Prasad Sikaria [(2007)  2 SCC 551]}.        Such a question does not arise for our consideration herein.  18.     We have noticed hereinbefore that the defendant, inter alia, on the  plea of identification of the suit land vis-‘-vis the deeds of sale, under which  the plaintiff has claimed his title, claimed possession.  The defendant did not  accept that the plaintiff was in possession.  An issue in this behalf is,  therefore, required to be framed and the said question is, therefore, required  to be gone into.  Limitation would not commence unless there has been a  clear and unequivocal threat to the right claimed by the plaintiff.  In a  situation of this nature, in our opinion, the application under Order VII Rule  11(d) was not maintainable.  The contentions raised by the learned counsel  for the respondent may have to be gone into at a proper stage.  Lest it may  prejudice the contention of one party or the other at the trial, we resist from  making any observations at this stage. 19.     For the reasons mentioned above, the impugned judgment cannot be  sustained.  The same is, therefore, set aside.  The appeal is allowed with  costs.  Counsel\022s fee assessed at Rs.25,000/- (twenty five thousand).