JAYANT NATH, J.

CM No.36469/2016

Allowed subject to all just exceptions.

CM(M) 999/2016 & CM No.36468/2016

1. By the present petition the petitioner seeks to impugn the order dated 8.9.2016 of the trial court by which issues were framed. The grievance of the petitioner is that two issues have not been framed regarding (i) that the suit is barred under Section 34 of the Specific Relief Act as relief of possession has not been sought by the respondent and (ii) that the suit is barred by limitation.

2. The respondent has filed the present suit for cancellation of release dated 13.11.2006 and declaration of ownership. On 18.5.2015 when the matter was pending before this court the learned Single Judge of this court recorded the statement of the respondent under Order 10 CPC and held that the suit is barred by limitation and dismissed the suit. A Division Bench of this court in an appeal vide judgment dated 11.9.2015 restored the suit to its position holding that the findings recorded by the learned Single Judge are erroneous. The petitioners filed a Special Leave Petition against the said judgment of the Division Bench which was dismissed on 6.11.2015.

3. Learned counsel appearing for the petitioner has submitted that the two issues would arise from the pleadings of the parties. He further submits that the judgment of the Division Bench dated 11.09.2015 does not confer finality on the issue of limitation. He relies upon the grounds of the appeal filed by the respondent before the Division Bench to contend that it was the stand of the respondent all along that the issue of limitation is a mixed question of law and fact. On the second issue of applicability of Section 34 of the Specific Relief Act he submits that the petitioner is in possession of the suit property and in view of the same the present suit would be barred under Sections 34 of the Specific Relief Act.

4. Learned counsel for the respondent has on the issue of limitation submitted that the judgment of the Division Bench dated 11.09.2015 is conclusive on the issue of limitation and no issue of limitation can be framed. On the contention that an issue be framed regarding maintainability of the suit under section 34 of the Specific Relief Act he submits that the respondent is in possession of the suit property and hence the said contention of the petitioner has no basis.

5. Coming to the issue of limitation, a perusal of the order of the learned Single Judge would show that statement of the plaintiff/respondent was recorded under Order 10 CPC and thereafter the learned Single Judge dismissed the suit amongst others on the ground of limitation. The suit was dismissed at the preliminary stage without recording evidence.

6. The respondent filed an appeal. In the grounds of appeal before the Division Bench, the respondent urged as follows:

“C. Because there was no application under Order VII Rule 11 of CPC, therefore issues were required to be framed as the pleadings in the suit were complete.

D. Because the dismissal of the suit on the ground of limitation was not warranted as it is a mixed question of law and fact in the facts of the case. In AIR 2006 SC 3672 title as “Ramesh B Desai v. Bipin Vadilal Mehta”, it was held by Hon’ble Supreme Court that”

....

It was emphasized in para 25 of the reports that the statement in the plaint without addition or subtraction must show that it is barred by any law to attract application of Order 7 Rule 11 CPC. The principal is, therefore, well settled that in order to examine whether the plaint is barred by any law, as contemplated by Sub-Rule (d) of order VII rule 11 CPC, the averments made in the plaint alone have to be seen and they have to be assumed to be correct. It is not permissible to look into the pleas raised in the written statement or to any piece of evidence.”

7. The Division Bench in its judgment dated 11.09.2015 concluded as follows:

“8. In the light of these facts the averment of Siri Bhagwan that not being well-conversant with