A plea of limitation cannot be decided as a preliminary issue if it requires an inquiry into facts.

P.K.BHASIN, J: This appeal has been filed under Section 96 of the Code of Civil Procedure, 1908 against the order dated 22/10/2008 passed by the Court of Additional District Judge, Delhi in Suit No. 619/06/05 filed by the appellants herein whereby their suit for declaration and permanent injunction was dismissed as time barred.

2. The relevant facts for the purpose of present appeal may first be noticed. The appellants (hereinafter to be referred to as ‘the plaintiffs’) claiming themselves as joint owners of certain pieces of land in village Burari and village Badarpur Majra(hereinafter to be referred to as the ‘suit property’) filed a suit for declaration and injunction against the respondents herein(who shall hereinafter be referred to as ‘the defendants’). It was claimed by the plaintiffs that the suit property belonged to Shri Chajju who was the uncle of plaintiffs no. 1 and 2(brother of their father late Shri Khacheru) and brother of the grand-father of plaintiffs no.3 to 7. Shri Chajju had inherited the suit property from his grand-father late Shri Ram Baksh. Shri Chajju was unmarried and he had died intestate. After the suit property was inherited by the plaintiffs from late Shri Chajju the same was mutated in their names in the revenue records on 19/12/2000. It was further claimed by the plaintiffs that in the month of August 2005 they had come to know that the two defendants, who are husband and wife, were trying to sell the suit property claiming themselves to be the owners thereof on the basis of a Will, allegedly executed in their favour by late Shri Chajju and when they enquired from the defendants about the Will and asked for a copy of the alleged Will the same was not provided to them. Then they inspected the revenue records and it transpired that the defendants had got the suit property mutated in their names in collusion with some revenue officials but no copy of the alleged Will of late Shri Chajju was found even in the revenue records. The plaintiffs then filed the suit in September, 2005 for a decree of declaration to the effect that they were the joint owners of the suit property and the Will, if any, of Shri Chajju was forged and fabricated document. Decree of permanent injunction restraining the defendants from transferring or alienating the suit property was also sought. The cause of action for filing the suit was alleged to have arisen in August, 2005 when the plaintiffs had come to know that the defendants had got the suit property mutated in their names based on the Will allegedly executed in their favour by late Shri Chajju.

3. The suit was contested by the defendants and by way of preliminary objection it was pleaded that the suit was time barred (without stating as to how the suit was time barred). On merits, it was pleaded that Shri Chajju, who was the bhumidar of the suit property, had executed a Will dated 24/07/1963 in their favour in respect his properties during his lifetime and the same was registered also. The defendants also asserted that since the demise of Shri Chajju in 1983 they were recorded as the bhumidars after mutation in their favour of the properties owned by Shri Chajju, including the suit lands, they were continuously in cultivatory possession of the entire suit property as well as other immovable properties belonging to late Shri Chajju whom they had served during his lifetime and further that some of the properties of Shri Chajju they had already sold also. Defendant no.1 claimed that he was the son of the sister of Shri Chajju and it was also alleged that defendant no.1 was not only brought up by Shri Chajju but was got married also by Shri Chajju.

4. From the pleadings of the parties the trial Court framed the following issues:-

“1. Whether the suit is not within time? OPD.

2. Whether the plaintiffs have no cause of action to file the present suit? OPD.

3. Whether the defendants are Bhumidars and in possession of the land in su