The main legal point established in the judgment is that the question of limitation is arguable and should be decided at the stage of trial on evidence, and that the issues raised in the application for rejection of plaint should be decided at the trial of the suit and not at a premature stage.

SABYASACHI BHATTACHARYYA, J.

1. The present application under Article 227 of the Constitution of India has been moved by the first defendant in a suit for declaration and consequential reliefs, against the portion of the impugned order whereby the petitioner's application under Order VII Rule 11 (d) of the Code of Civil Procedure, for rejection of the plaint, was dismissed on contest.

2. The suit was instituted for the following reliefs:

(a) Decree for declaration that the schedule property of the Plaint absolutely seized and possessed by the Plaintiff;

(b) Decree for Declaration that the Defendants do not have any right title interest over suit property to interfere with possession of the Plaintiff in schedule property of the plaint;

(c) Decree for permanent injunction is required to be granted restraining the Defendant No. 1 to create any obstruction and/or disturbance to the peaceful possession and enjoyment of the Plaintiffs over and in respect of the schedule property of the Plaint.

(d) Decree for permanent injunction restraining the Defendant No:- 1 to 18 including their men and agents from creating any obstruction to the peaceful possession and enjoyment of the Plaintiff and/or from taking forcible possession over the schedule property of the plaint.

(e) Decree for declaration that the Registered Deed of sale dated 28th April 2005 being Deed No: 669 executed by Defendant No. 2 to 18 through the Defendant No:- 18 in favour of the Defendant No:- 1 is void ab initio and a fraudulent deed collusive in character and is a sham transaction and not acted upon and/or inoperative and is also not binding upon the Plaintiff;

(f) Decree for permanent injunction restraining the Defendant No:- 1 from changing the nature and character suit property upon alienating, encumbering and or transferring and or creating third party interest over the schedule property upon mortgage or lien thereon.

(g) Interest

(h) Costs;

(i) Further and other reliefs.

3. The grounds in the application for rejection of plaint were: first, that prayer (e) of the plaint, which was the principal relief, was barred under Article 56 of the Limitation Act, 1963, particularly in view of the averments in paragraph no. 14 of the plaint; secondly, that prayer (b) of the plaint was barred by Section 34 of the Specific Relief Act, particularly since negative declaration was not permissible; and thirdly, that prayer (a) of the plaint was barred by the principle of res judicata.

4. Such contentions were opposed by the plaintiff/opposite party no. 1 by filing a written objection to the said application.

5. The trial court, while dismissing the application for rejection of plaint, held inter alia that the question of limitation involved both facts and law and did not come under the periphery of Order VII Rule 11 of the Code of Civil Procedure, since the said provision involved only points of law. It was further held that the defendant no. 1/petitioner did not plead the point of res judicata properly and that orders of the B.L. & L.R.O. and the D.L. & L.R.O., who were quasi-judicial bodies, did not attract res judicata. It was also held that the defendant no. 1/petitioner did not specifically mention the provision of law under which the plaintiff's suit was barred.

6. Learned Counsel for the petitioner argues at the outset that the trial court acted without jurisdiction in closing finally the questions raised in the application for rejection of plaint, without even keeping those open to be decided as issues in the suit upon trial on evidence, despite having refused to reject the plaint inter alia on the score that the question of limitation was a mixed question of fact and law.

7. Secondly, it is argued, the blanket observation of the trial court, as to the question of limitation always being a mixed question of fact and law, was erroneous on the face of it and was not a valid proposition of law. Learned counsel places reliance on the averments made in paragraph no. 14 of the plaint