ORDER :

A.J.Desai, J.

[1.0] By way of present appeal under Section 96 read with Order XLI of the Code of Civil Procedure, 1908 (hereinafter referred to as “CPC”), the appellant herein – original plaintiff No.1 has challenged the judgment and decree dated 05.04.2019 passed below application Exh.35 by the learned 5th Additional Senior Civil Judge, Gandhinagar (hereinafter referred to as “trial Court”) in Special Civil Suit No.166/2016 (hereinafter referred to as "the aforesaid suit") by which the learned trial Court has accepted the application Exh.35 filed in the aforesaid suit filed by the respondent Nos.7 and 8 herein – original defendant Nos.7 and 8 (hereinafter referred to as “original defendant Nos.7 and 8”) under Order VII Rule 11 of the CPC and dismissing the suit on the ground that the suit has been filed beyond the prescribed period of limitation as provided under Articles 56, 58 and 59 of the Schedule to the Limitation Act, 1963 (hereinafter referred to as “Limitation Act”).

[2.0] A caveat was filed by the original defendant Nos.7 and 8 way back in the year 2019. Thereafter, the matter has been listed time and again and it seems that no notice has been issued in the present First Appeal.

[3.0] The Registry has received Record & Proceedings of Special Civil Suit No.166/2016 which have been perused by this Court.

[4.0] The case put forward by the original plaintiff No.1 alongwith other plaintiffs i.e. respondent Nos.9 and 10 herein at the time of filing of the suit is as under:-

[4.1] That, the land in question i.e. Survey No.9/1 admeasuring 2934 Sq. Meter situated at Mouje Chandkheda, Taluka Daskroi and District Ahmedabad (hereinafter referred to as “suit property”) belonged to grandfather viz. Nathabhai Naranbhai Patel of the appellant herein. Subsequent to death of grandfather of the appellant herein, names of his legal heirs came to be mutated in the revenue record. One of the legal heirs i.e. original defendant No.5 viz. Mahendrabhai Nathabhai Patel, who happens to be the father of the present appellant and also the father of minor Darshil (brother of appellant herein) and husband of Ashaben alongwith co-owners executed an Agreement to Sell with original defendant Nos.7 and 8 on 12.10.2009, which was registered with Sub-Registrar, Gandhinagar vide Entry No.11358. Thereafter, all the owners of the suit property executed a registered sale deed on 25.04.2011 in favor of original defendant Nos.7 & 8 and the same was also registered with the concerned office at Sr. No.5797.

[4.2] It is the case of the present appellant alongwith her minor brother and their mother, who had filed the aforesaid suit namely Ashaben wife of Mahendrabhai Patel that when they checked the revenue record in the year 2016 about the suit property, they came to know that the suit property was sold in the year 2011 though all of them had share in the suit property. Having come to know about the same, in the year 2016, the suit came to be filed.

[4.3] In response to the summons issued by the learned trial Court, except original defendant Nos.7 and 8, none of the defendants including the father of the appellant herein, appeared before the Court or filed any written statement. The original defendant Nos.7 and 8 filed application Exh.35 under Order VII Rule 11 of the CPC raising contention that the suit is hopelessly barred by the provisions of the Limitation Act and more particularly barred by Articles 56, 58 and 59 of the Schedule to the Limitation Act. No reply was filed by the original plaintiffs to the said application Exh.35.

[4.4] The learned trial Court after examining the plaint as a whole, considering the cause of action stated by the original plaintiffs and also considering the prayers sought for by the original plaintiffs, held that the suit has been filed beyond the prescribed period of limitation of 3 years as per Article 58 of the Schedule to