The judgment emphasizes the distinction between the law of limitation and the requirement for permission for sale under The Hyderabad Tenancy and Agricultural Lands Act, 1950, and highlights the mixed question of law and facts that requires trial.

JUDGMENT

Vinay Joshi, J. - Heard fnally, by consent of both the learned counsels.

2. Challenge in this petition is to the order dated 18.12.2019 passed on Exh. 21 in Regular Civil Suit No. 33 of 2017 by which the petitioners (defendants) application for rejection of plaint in terms of Order 7 Rule 11 (c) and (d) of the Code of Civil Procedure was came to be rejected. The defendants have raised objection to the maintainability of suit by stating that suit is barred by law of limitation, and requisite Court fee stamps has not been paid. The trial Court has turned down both the objections by passing impugned order.

3. The facts in brief are such that respondent (plaintifs) have fled Regular Civil Suit No. 33 of 2017 for declaration that sale deeds are not binding on their share, possession of the suit land and for perpetual injunction. It is the plaintifs case that suit land admeasuring 3 Hector 72 R out of Gut No.78 (old survey No. 39/2) was originally owned by one Jankiram. The plaintifs grand-father Nathu Khandu was the protected tenant of the suit property. after demise of Khandu, his four sons, including plaintif's father Damu became protected tenants of the suit land. Later on in terms of Section 38(E) of The Hyderabad Tenancy and agricultural Lands act, 1950 all four brothers acquired ownership of tenanted property. There was partition, in which suit property came to the share of plaintif's father Damu. after demise of Damu, name of plaintif's mother ( defendant No.3) was mutated to the revenue record of the suit property.

4. It is plaintifs case that on 20.03.1972, their mother sold suit property in favour of defendant No.1 without seeking permission for sale from the competent authority. Later on again suit property was mutated in the name of plaintifs mother. Then on 14.12.1979, again plaintifs mother executed another sale deed in favour of defendant No.2 about same suit property. It is alleged that the said sale deed was fctious and bogus. Plaintifs mother had not executed sale deed but by practicing fraud it was got executed. The plaintifs have recently got knowledge about the entire transaction, therefore, suit for declaration, possession and injunction as aforementioned.

5. Since it is settled law that averments made in the plaint are only relevant for the purpose of deciding application under Order 7 Rule 11 of the Code of Civil Procedure, it is not necessary to go into the defences. The defendants have fled application (Exh.20) seeking rejection of plaint, primly on the ground of limitation and secondly non-payment of requisite Court fees stamps. The learned counsel appearing for petitioners would submit that though the plaintifs have sought declaration that the sale deed is not binding, however, in efect they are seeking for setting-aside the sale deed. By placing reliance on the decision in the case of Raghwendra Sharan Singh Vs. Ram Prasanna Singh (Dead) by LRs Civil appeal No. 2960 of 2019 ( Supreme Court of India) it is argued that the substance of plaint has to be seen by ignoring clever drafting. It is submitted that in above referred case, a gift deed was sought to be set-aside after several years on attaing majority and in the circumstances the Hon'ble Supreme Court held that the suit was barred by law of limitation. In above referred case the facts were such that gift deed was executed and executant has challenged the same after lapse of several years. In case at hand, as per averments of plaint there is legal embargo on sale about the property acquired under the provisions of Tenancy act. Therefore, the validity of sale is a matter of trial in the suit. Thus, being distinct facts the said ratio would not apply to the case.

6. The learned counsel for the petitioners would submit that sale deeds were executed in the year 1972 and 1979 respectively. It is submitted that suit was fled after 30 to 35 years by plaintif after attaing majoirty. He would submit that the suit is principally by minors for setting-aside