The main legal point established in the judgment is that the issue of limitation is a mixed question of fact and law and cannot be decided as a preliminary issue. The court emphasized the need to follow the mandate of Order XIV Rule 2 of the CPC in deciding the suit on preliminary issues.

JUDGMENT :

Parth Prateem Sahu, J.

The appellants/plaintiffs have assailed the legality, validity and propriety of the impugned judgment and decree dated 11.04.2008 passed by learned District Judge Raigarh, District Raigarh, Chhattisgarh in Civil Suit No.4-A/2007 whereby the learned trial Court dismissed the suit after framing and deciding the preliminary issues.

2. Brief facts for disposal of this appeal, are that, the plaintiffs have filed a suit for declaration of title and further declaration that the execution proceedings of Civil Suit No.61-B/1972 and entries made in revenue records in favour of defendants No.2 to 4 in pursuance to the execution proceedings to be declared illegal and void as well as claimed relief of possession from defendants No.2 to 4 on the ground that father of defendants No.2 to 4 have filed a civil suit for recovery of an amount of Rs.1,590/- along with interest @ 6% per annum from 01.06.1969. It has been pleaded that civil suit was decreed. It has been further pleaded that father of defendants No.2 to 4 by suppressing the correct facts have got property in dispute attached in execution proceedings and subsequently, in an auction proceedings held by the Executing Court, had purchased the suit property himself fraudulently. It has been also pleaded that as the father of the plaintiffs do not have any other land, therefore, as per the provisions of Section 165(7) of the Chhattisgarh Land Revenue Code, 1959 (hereinafter referred to as the 'Code, 1959'), the property in dispute cannot be attached in any execution proceedings. The date of knowledge with respect to illegal proceedings of attachment drawn by Executing Court was mentioned as 26.07.2004 when they perused the revenue records and thereafter suit was filed after obtaining the certified copies of the judgment and decree.

3. Defendants No.2 to 4 submitted written statement to the suit and pleaded that they are the owner and possessor of the land in dispute which their father have purchased in an auction proceedings through the Court and thereafter in valid mutation proceeding, their names have been mutated in the revenue records. They have denied that there was any loan transaction between father of the plaintiffs and father of defendants No.2 to 4. It has also been pleaded that in a suit for recovery of an amount decreed in favour of father of defendants No.2 to 4 has been attached by the competent civil Court and the competent civil Court in a valid execution proceedings, attached the property and thereafter, put it to auction and in the said auction, the property in dispute was purchased by father of defendants No.2 to 4 and there is no question of fraud or forgery. It has also been pleaded that the pleadings made by the plaintiffs with respect to the date of knowledge i.e. 26.07.2004 with respect to the judgment and decree passed in Civil Suit No.61-B/1972 and its execution proceedings to be false and fabricated because the dispute between the parties had already been taken place with respect to same property before different forums on the same issues. It has been also pleaded that the suit is barred by limitation. Further, the objection with respect to the proper valuation of the suit has been raised.

4. On the basis of pleadings made by the respective parties, learned trial Court had framed as many as seven issues for consideration along with issues of valuation, proper Court fees as well as with respect to limitation i.e. whether the suit is filed within the period of limitation or not? The issues framed by the learned trial Court are reproduced herein below :-

**¼1½ D;k O;ogkj okn Ø0 61c@72 esa f}rh; O;ogkj U;k;k/kh'k oxZ&2 ds }kjk ikfjr vkKfIr ds ikyu esa dh xbZ fu"iknu dh dk;Zokfg;ka voS/k ,oe~ 'kwU; gS \

¼2½ D;k mDr vkKfIr ds rkjrE; esa jktLo vfHkys[kksa esa bUnzkt dh dk;Zokfg;ka voS/k ,oe~ 'kwU; gS\

¼3½ D;k oknhx.k izfroknh Ø0 2 ls 4 ls oknxzLr laifRr dk fjDr vkf/kiR; izkIr djus ds vf/kdkjh gS \

¼4½ D;k okn dk mfpr ewY;kadu fd;k x;k gS\

¼5½ D;k