Point of Law: Gift deed - Rejected the plaint - Limitation - Suit is barred by limitation in view of pleadings of appellant that he came to know about gift deeds only two days prior to filing of suit as such issue of limitation was mixed question of law and fact in instant case therefore on this ground as well plaint could not have been rejected.

JUDGMENT :

1. Heard.

2. Admit.

3. Post Admission notice waived by Mr Faheem Nissar Advocate.

4. With the consent of the learned senior counsels, the appeal is taken up for final disposal.

5. The present appeal has been filed against the order dated 22.02.2021 passed by the Principal District Judge, Baramulla (hereinafter to the referred as the trial court), by virtue of which application filed by the respondent Nos. 1, 5, 6 and 7 under Order VII Rule 11 of the Code of Civil Procedure (CPC) has been allowed and the plaint of suit filed by the appellant herein, titled, “Bashir Ahmad Sofi vs Mst. Noora and others” has been rejected.

6. The appellant has impugned the aforesaid order on the ground that the learned trial court has erred in holding that the appellant had the knowledge about the gift deeds and/or has challenged the same beyond limitation and the learned trial court on its own has assumed the knowledge on the part of the appellant with regard to the gift deeds. Further, the appellant has challenged the order on the ground that the learned trial court has wrongly rejected the plaint as there were triable issues and also both the issues of limitation as well as issue of possession were infact the issues of fact and the plaint could not have been rejected and further that the learned trial court has wrongly assumed the respondent No. 1 to be in possession of the suit property.

7. Briefly stated the facts those are necessary for disposal of this case are that the appellant had filed a suit by virtue of which he had sought the following reliefs:

(a) relief of permanent injunction restraining the defendants/respondents from selling or creating third party interest over the double storey residential house over the “abadi deh” land measuring 4 marlas 2 sarsai and 18 feet comprising survey No. 267 situated at revenue Mozia Khaswah Baramulla (old Baramulla Mohalla, Jalalsahib) and a double storey commercial shop having dimension of 24 feet 09 inch by 10 feet 6 inch comprising khasra No. 1680 min situated at Mozia Khanpora (Ghad Bazar, Baramulla).

(b) Three gift deeds alleged to have been executed by the parents of the appellant in favour of respondent No. 1 regarding the suit properties be declared as null and void, ineffective and inoperative upon the interest of the appellant herein.

(c) Respondents be permanently restrained from causing any sort of interference in the possession of the appellant over the suit properties or in any portion thereto and not to change the present position of the entire suit properties.

8. The appellant had filed the said suit on the ground that the father of the appellant was owner in possession of the above mentioned house and a single storey shop mentioned above and upon the said single storey shop, the mother of the appellant had constructed a second storey. It was pleaded that the said suit properties remained with the mother of the appellant up to her death and mother along with the respondent No. 1 being the sister of the mother of the appellant was carrying on business of the bakery in the said doubled storey shop. The husband of respondent No. 1 used to manually support the mother of the appellant. The plaint contained an averment that the defendants/respondents had their residential house at Noor Bagh, Baramulla and they reside there. It was also averred that the suit house at Mohallah Jalalsahib has been locked by the appellant after the death of his mother, as the appellant resides at Iqbal Colony Old Town Baramulla. After the death of the mother of the appellant, the appellant requested the respondents about settling of the accounts of the business of the mother of the appellant, that was being run in the suit shop at Fish Market, Baramulla. The appellant locked the suit shop also after the demise of his mother in order to settle the accounts but the respondents delayed the settlement of accounts. It was also pleaded by the appellant that two days back, he requested the defendants/respondents re