IMPORTANT POINT
A suit concerning ancestral property cannot be dismissed under Order 7, Rule 11(d) for limitation without considering the factual context and evidence, as mixed questions of law and fact arise.

JUDGMENT :

(Divyesh A. Joshi, J.)

1. By filing present Civil Revision Application under Section 115 of the Code of Civil Procedure, 1908 (hereinafter referred to as “CPC” for short), the applicants have challenge the order dated 12.01.2024 passed below application, Exh.19 by the learned 5th Additional Senior Civil Judge, Jamnagar in Special Civil Suit No.21 of 2022, whereby the application, Exh.19 preferred by the applicant under Order 7, Rule 11(d) of the CPC came to be rejected.

2. Heard learned Senior Counsel, Ms. Manisha Lavkumar Shah assisted by learned advocate, Mr. Rohan Lavkumar Shah with learned advocate, Mr. Aaditya Dave for Nanavati Associates for the applicant and learned Senior Counsel, Ms. Trusha Patel assisted by learned advocate, Mr. Digvijaysinh Chauhan for learned advocate, Mr. Shivangi Vyas for the respondents.

3. Learned Senior Counsel, Ms. Shah submitted that the appellants are the original defendants in Special Civil Suit No.21 of 2022 filed by the respondents herein, who are the original plaintiffs, before the court of the learned Senior Civil Judge, Jamnagar inter alia praying for declaration that the original defendants are having 42.86% share in the land bearing Survey No.790 admeasuring 2-62-04 Sq.Mtrs. situated in Jamnagar City (hereinafter referred to as “the land in question” for short) and as also praying for order of handing over possession thereof and restraining the original defendants from selling, mortgaging, gifting, transferring etc. the land in question to third party and also prayed for cancellation of Entry No.78 mutated in the revenue record in or around 1951 declaring it to be null and void ab initio. She submitted that pursuant to issuance of the notice, the original defendants have appeared before the learned trial court and submitted an application under Order 7, Rule 11(d) of the CPC for rejection of the plaint on the ground of delay in institution of the suit, however, the learned trial court had rejected the said application by impugned order, which led to filing of the present application. She submitted that the issue relating to consideration of an application under Order 7, Rule 11 of the CPC is no longer res integra because the Hon’ble Court has to consider the averments made in the plaint as well as documents produced along with it, therefore, she is making submission on the strength of the facts as narrated in the plaint.

4. Learned Senior Counsel submitted that for the purpose of deciding the present application, the Hon’ble Court would have to make cursory glance upon the prayer clause as prayed for, which clearly goes on to show that the original plaintiffs have sought 42.86% share in the land in question and declaration thereof as also possession thereof. She submitted that it is not in dispute that the original plaintiffs and the original defendants are the heirs of one family and the land in question is belonging to the predecessor of the parties viz., Kasam Musa Ghanchi. She submitted that it is the specific case of the original plaintiffs that forefather of the plaintiffs and the defendants are the same and pedigree is also incorporated in the plaint, which clearly goes on to show that they are the direct linear of late Shri Kasam Musa Ghanchi and it is the specific case of the original plaintiffs that the land in question is belonging Kasam Musa and he was the farmer and cultivating the said land as darbari farmer since last many years and in the year 1951 or so, he passed away. She submitted that if the Hon’ble Court would make cursory glance upon the said pedigree, it is found out that the said Kasam Musa had two sons and three daughters and after the sad demise of said Kasam Musa, names of two sons viz., Suleman Kasam Makwana and Haji Isha Kasam Makwana had entered into record of rights and entry to that effect had been mutated in the record of rights, whereas his three daughters viz., Mariyam Kasam Makwana, Khatija Kasam Makwana and Rabhiya Kasam Makwana had no