JUDGMENT

Abhay Chaturvedi, J. - This revision petition is directed against the order dated 29.07.2019 passed by Additional Civil Judge No.3, Bikaner in Civil Original Case No.171/2019, whereby the trial court rejected the application filed by the petitioner under Order 7 Rule 11 CPC.

2. The facts relevant and necessary for disposal of the present revision petition are that the respondents - plaintiffs filed a civil suit against the petitioner herein and other defendants for permanent injunction seeking following reliefs:

.

3. Upon service of notice, the present petitioner and other defendants, filed written statement. The petitioner also submitted an application under Order 7 Rule 11 CPC with the averment that the plaintiff-respondent has sought relief for cancellation of sale deed executed by the defendant Nos. 2 and 3, the State Government has jurisdiction to grant such relief. It was also averred that the sale deed was executed in the year 2003 and as such, the suit was beyond the prescribed period of limitation, and the same is liable to be dismissed on this ground alone. The point of valuation and the deficiency in Court Fee was also taken in the application and a prayer was made that the application be allowed and the plaint be rejected under the provisions of Order 7 Rule 11 CPC.

4. The plaintiff-respondent submitted reply to the said application and denied the allegations made. He further averred that the sale deed in question is void ab initio and as such there is no need to declare it to be void. It was further averred that the relief sought in the suit cannot be granted by the State Government as alleged in the application. So far as the point of limitation is concerned, the plaintiff averred that the suit was filed after having knowledge of the alleged sale deed. The point of limitation is mixed question of facts and law which can be decided only after taking of evidence of the parties. In the last, prayer was made that the application to be dismissed.

5. The trial court dismissed the application vide order dated 29.07.2019. Hence, this revision petition.

6. Learned counsel for the petitioner submitted that the sale deed was executed by the Municipal Council in favour of the defendant No.1 in the year 2003 and the same was within the knowledge of the plaintiffs-respondents but they challenged the sale deed in the year 2019. As such, they filed the suit beyond prescribed period of limitation. It was also submitted that there is alternative remedy available to the plaintiffs to assail the sale deed before the State Government under the Rajasthan Municipalities Act, 2009. It was further submitted that in the suit, the plaintiff has sought relief against the defendant Nos. 2 and 3 but no notice under Section 304 of Rajasthan Municipalities Act, 2009 has been given prior to filing of the suit, which is mandatory and without such notice, the suit is not maintainable. On this ground alone, the suit is liable to be dismissed under the provisions of Order 7 Rule 11 CPC. Learned counsel for the petitioner, in support of his arguments, placed reliance upon the judgment passed by this Court in S.B. Civil Regular First Appeal No.174/2014 (Murli Ram & Ors. Vs. The State of Rajasthan & Ors.) dated 16.07.2014 and Maluram Vs. LRs of Late Smt. Jethi,2014 4 DNJ 1488 (Raj) .

7. Per contra, learned counsel for the respondents - plaintiffs urged that the plaintiffs have filed the suit with the averment that the sale deed executed by the Municipal Council in favour of the petitioner in null and void. It was further submitted that the Municipal Council has not taken objection regarding supply of notice under Section 304 in its written statement, thus, the right to notice by the Municipality shall be deemed to have been waived by the Municipal Corporation. The petitioner has no right to raise the point of non-compliance of provisions of Section 304 of the Municipalities Act. It was also urged that objections regarding limitation is a mixed questio