Rejection of plaint under CPC without recording evidence is legally unsustainable, especially when the issue involves mixed questions of law and fact.

JUDGMENT :

H.P.SANDESH, J.

This matter is listed for admission and I have heard learned counsel for the appellants and learned counsel for caveator-respondent Nos.1 and 2.

2. This regular second appeal is filed against concurrent finding of the Trial Court against the order passed on I.A.No.2 filed under Order VII Rule 11(a) and (d) read with Section 151 of CPC seeking rejection of the plaint. The said application is resisted by learned counsel for the plaintiff by filing statement of objections.

3. The Trial Court having considered the pleadings in the plaint and also prayer sought in the plaint in paragraph No.9, comes to the conclusion that Tahsildar initiated the proceedings in L.R.F.No.6/2005-06 and the possession of defendants’ father was shown to the extent of 4 acres 6 guntas and the defendants’ father during his life time had not challenged the said entries until his death on 03.04.2010.

4. It is argued that Hanumantharayappa’s daughter Smt. Padmamma filed O.S.No.613/2009 before Senior Civil Judge, Devanahalli for partition and separate possession of Sy.No.39 measuring 4 acres 6 guntas, the measurement mentioned in the plaint. It is further argued that the question of jurisdiction, limitation and cause of action has to be adjudicated only after full-fledged trial and not at this stage. The plaintiff at this stage has made out he is in possession and enjoyment of the suit property. The extent of possession of the defendants over 5 acres is a triable issue and the same has to be adjudicated at trial. The Trial Court also having considered the material on record, in paragraph No.13 comes to the conclusion that after death of Hanumantharayappa, the defendant Nos.1 and 2 have challenged M.R.No.2/2008-09 before the Assistant Commissioner in R.A.No.176/2013-14 and also revision petition was filed by the plaintiff in Revision Petition No.95/2017. Hence, the Trial Court comes to the conclusion that dispute was in force in the year 2008 itself, but the suit for declaration is filed in the year 2019 after lapse of 10 years and 38 years after the decision of the Land Tribunal. Therefore, the suit is barred by limitation and the same is taken note of and the Trial Court taken note of prayer sought and allowed the application.

5. Being aggrieved by the said order, an appeal is filed in R.A.No.15017/2020 before the First Appellate Court and the First Appellate Court having considered the grounds urged in the appeal memo, reversed the findings of the Trial Court in paragraph No. No.19 with regard to the prayer No.(b) of the plaint. However, in detail discussion was made in paragraph No.22 with regard to the proceedings between the parties and also taken note of service of notice in the appeal in paragraph No.24 and in paragraph Nos.25 and 26 observed regarding starting point of limitation and comes to the conclusion that if the date of cause of action between the parties in the Revenue Department is taken as the basis in respect of five years, then the suit is barred by limitation.

6. The main contention of learned counsel for the appellants is that when the First Appellate Court reversed the findings with regard to prayer No.(b) is concerned, but committed an error in coming to the conclusion that suit is barred by limitation and the same is erroneous, unless the Trial Court records evidence, since the issue of limitation is a mixed question of fact and law and the Trial Court cannot decide the said question only on the basis of pleadings and evidence of parties ought to have been recorded. Hence, committed an error.

7. Per contra, learned counsel for the caveator- respondent Nos.1 and 2 would vehemently contend that both the Courts have not committed any er