The court ruled that the rejection of the plaint was erroneous as it did not consider the merits of the case, emphasizing that the issue of limitation is a mixed question of law and fact.

JUDGMENT :

(SANGEETA K. VISHEN, J.)

By this Appeal, the appellants have challenged judgment dated 28.04.2017 passed by learned Principal Senior Civil Judge, Bardoli by which, the Special Civil Suit no.8 of 2017 has been rejected.

2. Vide order dated 03.11.2017, notice was issued for final disposal and the paper-book having been made available, the appeal is taken up for final disposal. For the sake of convenience, the parties are referred to as per their status in the Special Civil Suit no.8 of 2017.

3. Mr.Dipak Dave, learned advocate for the appellants- applicant-original plaintiffs, submitted that the Collector, by passing an order on 04.03.1978 granted permission to sell the land of which necessary mutation entry no.1484 has been posted in the revenue record and was certified on 30.05.1978. Thereafter, on 10.05.1978, a registered sale deed was executed by the forefathers of the plaintiffs and some of the plaintiffs in favour of defendant nos.6 to 8 with respect to land bearing survey no.91 block no.131 admeasuring acres 11 – gunthas 28 (hereinafter referred to as the ‘land in question’). It is submitted that since division was not permissible, the sale deed was executed and thus, on the very same date, an agreement to sell was also executed between the parties, i.e. the plaintiffs and their forefathers on one hand and defendant no.6 on the other.

3.1 It is submitted that reference to the sale deed is made in the agreement to sell. It has been clearly stated that he being a contractor, since in need of land for quarrying, intended to retain 5-6 acres of land from the land in question. It was also agreed that a sale deed would be executed in favour of the plaintiffs without any consideration, along with the handing over of the possession, effectively making them the owners of the land in question. It is submitted that the agreement to sell, clearly indicates that land, as per the need would be retained, and converted into non-agriculture, and thereafter, the sale deed would be executed for which, there would not be any time limit provided. It is submitted that the said agreement to sell-Exh.3 was very much forming part of the suit proceedings. It is submitted that the plaintiffs, were in continuous and in peaceful possession of the land in question. Since no time limit was provided, and the plaintiffs being in possession, no steps were taken; however, only in the year 2015, a sale deed was executed by defendant nos.6 to 8 in favour of defendant no.9. This refusal, led to grievances, prompting the plaintiffs to file a suit with multiple prayers, one of which, was for possession. It is further submitted that regarding agreement to sell, consideration was agreed not to be paid by the defendant no.6 at the time of execution of the sale deed. Since the plaintiffs claimed possession, the suit, has to go for trial, and hence, the aspect of limitation, would not arise. Moreover, given that the issue of limitation involves both mixed question of law and facts, the learned Judge ought not to have exercised the powers under Order VII Rule 11 of the Code of Civil Procedure, 1908 (hereinafter referred to as ‘the Code’).

3.2 It is further submitted that with regard to possession, numerous documents were placed on record including, village form nos.7 and 12, receipts and invoices for goods purchased for cultivation. Even the receipts issued by the authorities indicate that the plaintiffs made the payments. When there are numerous documents placed on record, the learned Judge, ought to have appreciated them rather than rejecting the plaint, observing that none of the documents, prima facie, prove that the plaintiffs, are in possession of the land in question. It is submitted that it is well recognized principle that simple averments regarding possession are sufficient and for which, separate documents are not required to be placed on record. Therefore, the rejection of the plaint by the learned Judge, constitutes an erroneous exercise of discretio