Point of Law: A perusal of the observations made indicates that the Court while laying down the above proposition has used the word ‘ordinarily’ and has not laid down that even in a case where the issue of limitation is raised in an application under Order VII Rule 11 CPC and it is clearly deciphered from the plaint that the suit is barred, the power under Order VII Rule 11 CPC cannot be exercised.

JUDGMENT :

1. This revision petition is directed against the order dated 24.1.2019 passed by Senior Civil Judge, Didwana (Nagaur), whereby, the application filed by the petitioner under Order VII Rule 11 CPC has been rejected.

2. The suit was filed by respondent No.1 – plaintiff against the petitioner and three others for cancellation, declaration and injunction in respect of the suit property on 18.3.2017 inter alia seeking cancellation of sale deeds dated 11.6.2012 and 8.7.2013 and declaring them as null and void. The suit was filed with the averments that the plaintiff by registered sale deed dated 16.3.2012 purchased the land from Prabhudayal, since then he was in possession of the property. It was alleged that on 11.6.2012 defendant No.1 – Mohan Lal without any right, title and possession, transferred the same to defendant No.2 - Rafiq Chhipa. The said defendant No.1 – Mohan Lal had purchased the said land by registered sale deed from Daanmal, who in the year 1946 had transferred the same to his son Laxmi Narayan and, therefore, he could not have transferred the same all over again.

3. It was claimed that the defendants were aware of the transfer in favour of the plaintiff despite that on 11.6.2012, the transfer was executed, which is void ab initio. It was then averred that when the plaintiff came to know of the sale deed on 19.6.2012, he filed a suit for injunction alongwith an application for temporary injunction, wherein, on 13.2.2014 his application was allowed and injunction against dispossession was granted. However, during pendency of the said suit, defendant No.2 – Rafiq Chhipa transferred the property to defendant No.3 – Iqbal Chhipa by registered sale deed dated 8.7.2013 despite the fact that he had no possession and title to the suit property.

4. Submissions were made that as the transfer was affected in violation of provisions of Section 52 of the Transfer of Property Act, 1882, the same was void. Further submissions were made that on 22.7.2017, Iqbal Chhipa tried to break upon the lock of the gate, based on the sale affected in his favour, the plaintiff made inquiries from Tehsil office Ladnu, when it was disclosed that on 8.7.2013 itself the defendant – Rafiq Chhipa had transferred the land to Iqbal Chhipa, copies of the sale deed were procured and the defendants were told that they had no right, on which, they threatened dispossession.

5. It was claimed that transfer in favour of defendants – Rafiq Chhipa and Iqbal Chhipa were void ab initio and, therefore, the suit for declaration was filed and a prayer for injunction was also made. Application under Section 80(2) CPC was also filed. Based on the above averments, prayers were made seeking permanent injunction and declaration regarding the sale deeds being void ab initio.

6. The defendant No.3 – petitioner filed an application under Order VII Rule 11 CPC inter alia with the submissions that as the plaintiff had indicated in para-4 of the plaint that he became aware of the sale deed dated 11.6.2012 on 19.6.2012, the suit having been filed in the year 2017, was barred by limitation and was liable to be rejected.

7. Submissions were contested by the plaintiff with the submissions that the transfer in favour of defendant No.3 was made on 8.7.2013, which fact in the pending suit, was not disclosed and the plaintiff became aware of the same on 27.2.2017, when attempt was made to break upon the lock of the gate and as such, the suit was not barred by limitation.

8. The trial court, after hearing the parties, by the order impugned came to the conclusion that for disposal of an application filed under Order VII Rule 11 CPC, the court is required only to peruse the averments made in the plaint, wherein, though the plaintiff has averred that he became aware about the sale deed dated 11.6.2012 on 19.6.2012, however, qua the sale deed dated 8.7.2013, he became aware on 27.2.2017 and as the suit has been filed on 18.3.2017 and as further from perusal of the plaint, it is not di