important points
An application under Order VII, rule 11 can be maintained only if the averments in the plaint show that it is barred by limitation. Case of defence cannot be considered at this stage.
In a suit claiming title over suit property in terms of Articles 64 and 65 of the Limitation Act, 1963, burden of proving title by adverse possession would be on the defendant.

judgment

S.B. Sinha, J. —

1. Leave granted.

Appellant herein filed a suit against the respondents claiming, inter alia, for the following reliefs :

“(a)For declaration of plaintiffs title to the suit property;

(b)For consequential injunction, restraining the defendants, their men, agents, servants, etc. from in any manner interfering with the plaintiffs 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.”

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 :

2.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 this Honble 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.”

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

“This 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.”

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 :

“The suit property as shown in the schedule to OS No. 502 of 200