A suit for declaration and permanent injunction coupled with a prayer for possession is not barred under Section 34 of the Specific Relief Act, 1963.

Sahidullah Munshi, J.

1. In view of order dated 24th August, 2010, passed in C.O. No.2542 of 2009, this revisional application was heard analogously with C.O. No.2542 of 2009. For the sake of convenience C.O. No.2542 of 2009 (Parul Projects Ltd. – Vs. – Mrinal Kanti Basu & Ors.) has been decided first and in deciding this case I intend to rely upon the findings arrived at in C.O. No.2542 of 2009 because identical issues of fact and law are involved in both the matters.

2. This revisional application is directed against an order being no.21 dated 20th August, 2007, passed by the learned 3rd Civil Judge (Senior Division) at Alipore in Title Suit No.76 of 2006. In the revisional application the petitioners have stated that – opposite party nos. 1 to 4 as plaintiffs filed a suit being Title Suit No.76 of 2006 for a declaration and permanent injunction in the Court of the learned 3rd Civil Judge (Senior Division) at Alipore. In the said suit it was, inter alia, prayed by the plaintiffs that they have right, title and interest over 20% super built-up area of the premises being no.115B/1, Netaji Subhas Bose Road, under Regent Park Police Station, Kolkata – 700040, this is mentioned in Schedule A to the plaint and further that they were entitled to have delivery of possession of separated and demarcated portion of the said 20% super built-up area in the suit premises. The plaintiffs also prayed for permanent injunction restraining the defendant nos.1 to 4 from obstructing the possession of 20% super built-up area in the suit premises mentioned in Schedule A to the plaint.

3. The defendants, after entering appearance in the suit, filed an application under Order VII, Rule 11 of the Code of Civil Procedure and prayed for rejection of the plaint, inter alia, on the grounds that –

(1) The plaintiffs have got no cause of action for filing the suit and there has been no cause of action in the plaint for filing the suit against the defendant nos.1 to 4.

(2) The suit is hopelessly barred by law of limitation.

(3) The suit is hopelessly barred by provisions of Section 34 of the Specific Relief Act as also Section 14 (1) (c) and (3) (c) of the Specific Relief Act, 1963.

(4) There has been no privity of contract between the parties and

(5) The plaint does not disclose the cause of action.

4. After a contested hearing, the learned Court below, by the order impugned, rejected the application under Order VII, Rule 11 of the Code of Civil Procedure filed by the defendant nos.1 to 4. While rejecting the said application under Order VII, Rule 11, the learned Court below arrived at a finding that cause of action is a mixed question of facts and law and the same requires to be decided on evidence. Learned Judge has mentioned that paragraph 23 of the plaint discloses that the cause of action for the suit arose on 18th August, 2006 when the defendants refused to separate, demarcate and delivery of possession of 20% super built-up area in the suit property. According to the learned Court below, provisions of Order VII, Rule 11(d), Code of Civil Procedure provides that the plaint may be rejected if on perusal of the plaint it appears that the same is barred by any provision of law. Learned Judge has held that as per averment made in paragraph 23 of the plaint the plaintiffs approached the defendant on 18th August, 2006 to separate and/or demarcate and/or deliver 20% super built-up area in the suit premises but the defendant refused to separate and/or demarcate and/or deliver possession of the said 20% super built-up area and that gave rise to the cause of action for this suit. The suit was filed on 26th September, 2006. Therefore, according to the learned Judge, the suit was filed within one and half month from the date of accrual of the cause of action. The learned Court below has also held that the plaintiffs have prayed for declaration and also for possession of the suit property after demarcation. According to the learned Court below, the suit is not a