IMPORTANT POINT
The court emphasized the importance of a proper cause of action and held that the question of when the plaintiff gained knowledge about the cancellation of the Gift Deed and execution of the Sale Deed was a question of fact to be decided after trial.

JUDGMENT

1. This C.R.P. is filed by the petitioners / defendants 1 and 2 challenged the order dtd. 3/2/2023 in I.A.No.325/2016 in O.S.No.62/2016 passed by the learned XI Additional District Judge, Visakhapatnam, dismissing the petition filed by the petitioners under Order VII Rule 11 r/w 151 CPC to reject the plaint.

2. The facts are briefly thus:

(a) The 1st respondent / plaintiff filed O.S.No.62/2016 pleading that his mother was the original owner of the site purchased under a registered Sale Deed dtd. 26/8/1980 and later she gifted to plaintiff under a registered Gift Deed dtd. 7/10/1985 and thereafter the plaintiff having obtained approval of plan from GVMC and constructed a RCC building with his own amount, which is the plaint schedule property.

(b) The plaintiff on account of his employment resides in Australia along with his family members. While his mother used to stay in the said building by letting out one portion to tenants, the 3rd defendant used to stay in one portion as tenant by running the office of 1st defendant which is a religious organization. Out of faith in Christianity, the plaintiff's mother believed the defendants and allowed them to stay in one portion on a monthly rent of Rs.2,000.00. She died on 23/3/2013 and the plaintiff came to India to attend her obsequies. At the time, the 3rd defendant requested him to allow him to stay in the schedule house for one year till they get alternative accommodation. The defendants paid rents till June 2015 and committed default thereafter. In October 2015, the plaintiff came to India and asked the 3rd defendant about the rents and at that time strangely the 3rd defendant stated that they purchased the schedule property from his mother and hence, they will not pay the rent. They produced the Xerox copy of the Sale Deed. The plaintiff came to know about the said fraudulent transaction as his mother, having gifted the said property to him, had no right to sell the same to the defendants. In addition to that, the gift was accepted long back and plaintiff constructed house property thereon by spending huge amounts. Thus, the defendants obtained Sale Deed by playing fraud taking advantage of the plaintiff staying in abroad and his mother's old age. No possession was delivered to the defendants as the plaintiff's mother never vacated the schedule premises till her death.

(c) The further case of the plaintiff is that since the plaintiff stays in abroad, he gave power of attorney to his co-brother and he obtained information that during January 2016 the defendants illegally removed the existing building bearing D.No.38/32/75 constructed by the plaintiff and they are trying to construct a new building though the existing building is in good condition. Hence, he filed the suit for declaration that he is the absolute owner and for recovery of possession of the plaint schedule premises along with damages.

(d) While so, the defendants 1 and 2 filed I.A.No.325/2016 under Order VII Rule 11 CPC r/w 151 CPC on the main grounds that the plaintiff was fully aware of the fact that his mother cancelled the Gift Deed dtd. 7/10/1985 by way of a registered Cancellation Deed dtd. 5/8/1988 and thereafter, in order to clear her loans obtained from Visakhapatnam Cooperative Bank she sold the plaint schedule property in favour of defendants by virtue of registered Sale Deed dtd. 31/5/2000. The plaintiff has deliberately not challenged the Cancellation Deed dtd. 5/8/1988 and the Sale Deed dtd. 31/5/2000 because long back, the reliefs were barred by limitation. Therefore, the plaint is bereft of the cause of action besides the suit is barred by law of limitation and hence, the plaint is liable to be rejected.

(e) The plaintiff filed counter opposing the above petition and contending that the cancellation of Gift Deed is not recognized under law as it was cancelled without the consent or knowledge of the plaintiff and it was not known to the plaintiff. It is further contended that the cause of acti