The rejection of only a part of the plaint under Order 7 Rule 11 of the Civil Procedure Code is impermissible, and the issue of limitation is a mixed question of law and fact that cannot be decided at the stage of considering an application under Order 7 Rule 11 (d) of the Civil Procedure Code.

M.S. Sonak, J.

1. Admit. With the consent of the learned Counsel, the appeal is taken up for hearing and final disposal.

2. This Appeal is directed against a judgment and order dated 10 June 2013 as modified by an order dated 17 June 2013 (Notice of Motion No.1716 of 2010 in Suit No.2715 of 2007), rejecting the plaint under Order 7 Rule 11 (d) of the Civil Procedure Code in respect of one of two properties involved in the suit.

3. The Appellant is the original Plaintiff. Respondent Nos.1 to 41 are the original Defendants. Accordingly, the parties shall be referred to by their respective position in the plaint.

4. The Plaintiff instituted Suit No.2715 of 2007, inter alia against Defendant Nos.1 to 39 (hereinafter referred to as Vaitys'), M/s. Shree Anjaneya Estates-Defendant No.40, which is a Partnership Firm represented by four partners, Defendant Nos.40A, 40B, 40C and 40D and Deonar Industrial Premises Cooperative Housing Society Limited, Defendant No.41, seeking inter alia following reliefs:

(a) Declaration that Defendant Nos.1 to 39 are owners in respect of the first property ;

(b) Declaration that Defendant No.41 has no right, title or interest in the first property ;

(c) Perpetual injunction against Defendant Nos.40A to 40D and Defendant No.41 from alienating or taking over possession of the first property ;

(d) Declaration that agreement dated 27 November 2003 in respect of the first and second property is valid, subsisting and binding upon Defendant Nos.1 to 40;

(e) For a decree directing Defendant Nos.1 to 40 to specifically perform agreement dated 27 November 2003;

5. Besides aforesaid, the suit seeks reliefs in respect of second property described under Exhibit-A-2, as also relief of damages in the alternative.

6. The subject matter of the plaint is two properties described in Exhibit-A-1 and Exhibit-A-2 to the plaint. Since the plaint has been rejected in respect of the property described in Exhibit-A-1 (“the first property”), reference is made to the gist of the pleadings concerning the said property:

(a) By agreements dated 29 April 1979 and 24 October 1981, members of the Vaity family (some of whom were then minors) agreed to sell the first property to 17 persons who were promoters of Defendant No.41 which is a Society, which was eventually incorporated in the year 1987;

(b) The Vaitys (including minors) issued a Power of Attorney in favour of three promoters of the Society on 24 October 1981;

(c) Acting on the basis of the Power of Attorney dated 24 October 1981, the three constituted attorneys executed a Deed of Conveyance dated 18 August 1989 purporting to convey the first property to Defendant No.41-Society ;

(d) The two agreements of 1979 and 1981 stipulated that the vendors shall obtain the sanction from the High Court with regard to the sale of the shares of the minors. However, no such sanction was obtained;

(e) On the date of the execution of the Conveyance namely 18 August 1989, vendor Nos.22,24,25 and 41 (Vaitys) had expired and consequently the Power of Attorney dated 24 October 1981 stood revoked. On the basis of such a Power of Attorney, no conveyance could have executed;

(f) The Vaitys by a Declaration-cum-Deed of Cancellation dated 18 December 1995 duly registered with the Sub-Registrar, declared the Conveyance dated 18 August 1989 as cancelled or avoided the same as being 'nonest';

(g) On 4 October 2002, the Vaitys entered into an agreement for development of the first property with Defendant No.40 and executed a Power of Attorney in favour of the partners of Defendant No.40;

(h) By an agreement dated 27 November 2003, Defendant No.40 assigned rights in respect of the first property in favour of the Plaintiff. In pursuance of the agreement, the Plaintiff entered into possession of the first property, made investments to the extent of Rs.7.40 Crores, constructed a sample flat and issued letters of allotment to 84 purchaser (which allotments have subsequently been recalled on account of dis