The suit for partition could not be rejected on the ground of being time-barred and the existence of the Will was a triable issue, not a ground for rejection at that stage.

JUDGMENT :

CHANDRA DHARI SINGH, J.

I.A. 8955/2021 (Order VII Rule 11 CPC)

1. The instant application has been filed under Order VII Rule 11 of the Civil Procedure Code, 1908 (hereinafter referred to as the “CPC”) on behalf of defendant No. 1 seeking the following reliefs:

“a. Allow the present application under Order VII Rule 11 R/w Section 151 of the Civil Procedure Code, 1908 and reject the plaint filed by the Plaintiff.

b. Pass such other or further order(s) as this Hon'ble Court may deem fit and proper in the facts and circumstances of the case.”

FACTUAL MATRIX

2. The plaintiff/non-applicant has filed the captioned suit for partition, declaration, cancellation and permanent injunction.

3. The plaintiff and the defendant No. 1-4 are the immediate successors of late Dr. Jagjit Singh Bedi, who was the sole and absolute owner of the property bearing no. 132, Golf Links, New Delhi - 110003 admeasuring 335 sq. yds. consisting of ground, first and second floor.

4. The above-mentioned property was originally allotted to Smt. Prem Kumari Mehra wife of Sh. J.D. Mehra, resident of Bombay Life Building, Connaught Circus, New Delhi by the Land & Development Office, (hereinafter referred to as “L&DO”) Ministry of Urban Development, Ninnan Bhawan, New Delhi vide registered lease deed dated 24th September, 1956 registered in the supplementary book. no. 1, vol. no. 15, pages 23 to 26.

5. The father of the parties herein purchased the suit property from Smt. Prem Kumari Mehra after permission granted vide letter No. Asc. Auction/Golf Link/10/132/56 dated 2nd August, 1956, by Government of India, Ministry of Rehabilitation, Office of the Regional Settlement Commissioner, 35-P Block, New Delhi and vide sale deed dated 6th November, 1956 duly registered having registration no. 3637, in additional book no. 1, vol. no. 303, pages 50 to 54, dated 23rd November, 1956.

SUBMISSIONS

(on behalf of applicant/defendant No. 1)

6. Mr. Sandeep Sethi, learned senior counsel appearing on behalf of the applicant/defendant No. 1 submits that the captioned suit filed by the plaintiff is ex-facie barred by limitation. Furthermore, the plaint filed by the plaintiff shall be rejected at the very threshold being devoid of any cause of action.

7. It is the submission of the leaned senior counsel appearing on behalf of the applicant/defendant No. 1 that the captioned suit is barred by the virtue of Article 58 & 59 of the Limitation Act, 1963 (hereinafter referred to as “the Limitation Act”) that provides for a limitation period of three years from the date of which the right to sue first accrues or the knowledge of such transaction.

8. It is submitted that in light of the facts and circumstances of the instant case and even as per the plaintiff herself the cause of action first arose on 3rd October, 1992 and then on 21st January, 1992 and thereafter third week of February, 1993. Therefore, the plaintiff/non-applicant cannot be permitted to raise the contentions by way of the instant suit after an in-ordinate delay of 28 years. Reliance is placed upon the judgment passed by the Hon'ble Supreme Court in Md. Noorul Hoda v. Bibi Raifunissa, (1996) 7 SCC 767 and Abdul Rahim v. S.K. Abdul Zabar, (2009) 6 SCC 160 whereby it was held that the provisions of the Limitation Act, 1963 governs a lawsuit for annulment of a transaction, regardless of whether the transaction is null or voidable. Therefore, the suit should have been filed within three years of the date on which the plaintiff had knowledge that the allegedly void or voidable transaction had occurred. Due to the fact that the suit was not filed within three years, it is liable to be held as barred by limitation.

9. It is submitted on behalf applicant/defendant No. 1 that certain documents have been admitted by the plaintiff by way of which the suit property was bequeathed by the late father of the parties in favour of defendant No. 1. The said documents are enlisted included the following:—

i. Affidavit/NoC executed and filed before th