IMPORTANT POINT
The main legal point established in the judgment is that the question of limitation is a mixed question of law and fact, requiring a trial on its own merits. The Court also clarified the maintainability of a suit for injunction under Section 34 of the Specific Relief Act, especially in cases of co-ownership.

ORDER :

[1] Issue RULE, returnable forthwith. Ms. Mita S. Panchal, learned advocate waives service of Rule for and on behalf of the respondents/opponents.

[2] Heard Mr. Mrugen K. Purohit, learned advocate for the applicants and Mr. Mihir Thakore, learned Senior counsel assisted by Ms. Mita S. Panchal, learned advocate appearing for the opponents herein – original plaintiffs.

[3] By way of the present Civil Revision Application, under Section 115 of the Code of Civil Procedure, 1908 (for short ‘the Code’), the applicants – original defendants have approached this Court, being aggrieved and dissatisfied by the impugned order dated 03.12.2018 passed below application filed under Order 7 Rule 11(d) of ‘the Code’ below Exhibit-80, passed by the learned 3rd Additional Senior Civil Judge, Ahmedabad (Rural), Mirzapur in Regular Civil Suit No.161 of 2008, whereby, the said application was rejected.

[4] The brief facts leading to filing of the present Civil Revision Application read thus:

[4.1] It is the case of the applicants that the land in question having Survey/Block No.73 of Mouje- Kamod & Survey/Block Nos.138, 401, 406 and 408 of Mouje – Bakrol, Taluka – Daskroi, District – Ahmedabad, was running in the name of one Khodabhai Surabhai Christian, who passed away on 17.10.1944 and on his demise, the name of father of the applicants being Martinbhai Khodabhai was mutated in the revenue record. It is submitted that the original plaintiffs claim to be the heirs of Khodabhai Surabhai Christian.

[4.2] It is further stated that despite the fact that the names of the father of the original defendants was mutated in the revenue record and thereafter, the names of the defendants came in the revenue record, after a delay of about more than 60 years, the original plaintiffs – the respondents herein have instituted Regular Civil Suit No.161 of 2008 before the Principal Senior Civil Judge, Ahmedabad (Rural), Mirzapur, seeking permanent injunction directing the defendants not to transfer or assign or alienate the suit property. The possession qua the suit property have not been prayed for and therefore, under Section 34 of the Special Relief Act, mere declaratory suit without seeking possession, is not maintainable. It is stated that on service of summons, the applicants – original defendants appeared and filed their written statement.

[4.3] That, upon by-parte hearing, the competent Court granted injunction by an order dated 21.04.2009 directing the parties to maintain status quo qua the suit properties.

[4.4] That, various applications came to be preferred by the applicants herein for joining several third parties as defendants, however, some of the applications were not pressed and some are still pending, however, till date, no prayer with regard to partition and/or seeking possession of the suit property has been prayed by the original plaintiffs.

[4.5] In the aforesaid set of facts, the applicants herein – original defendants filed an application below Exhibit -80 under Order 7 Rule 11(d) of ‘the Code’ for rejection of the plaint, the same being barred by limitation and under the provisions of the Specific Relief Act. The competent Court rejected the said application vide order dated 03.12.2018.

[4.6] Being aggrieved by the said order, the applicants herein are constrained to approach this Court by filing the present Civil Revision Application, with the following reliefs:

“(A) YOUR LORDSHIPS may be pleased to admit and allow the petition.

(B) YOUR LORDSHIPS may be pleased to call from the record and proceedings from the court of the learned 3rd Additional Senior Civil Judge, Ahmedabad (Rural), Mirzapur in Regular Civil Suit No.161 of 2008 and further be pleased to quash and set aside the order dated 03.12.2018 passed below application filed under Order 7, Rule 11(d) of the Code of Civil Procedure, 1908 below Exh.80 by the learned 3rd Additional Senior Civil Judge, Ahmedabad (Rural), Mirzapur in Regular Civil Suit No.161 of 2008 and allow the application