JUDGMENT

B.K. PATEL, J. — The second appeal is directed against the judgment and decree dated 31.1.2012 passed by learned District Judge, Cuttack dismissing R.F.A. No.179 of 2011 and confirming the order dated 5.9.2011 passed by learned Civil Judge (Senior Division), 1st Court, Cuttack in T.S. No.531 of 1996-I rejecting, and refusing to admit, counter-claim of the appellant as being barred by limitation.

2. Appellant is defendant no.2 and respondent no.1 is the plaintiff in T.S. No.531 of 1996-I. Originally respondent no.5 as plaintiff instituted the suit for eviction of the appellant from the suit property. On 6.8.1997 the appellant filed written statement disputing the claim of the original plaintiff. Issues were settled on 2.2.2000. On 30.12.2002 registered sale deed in respect of the suit property was executed by original plaintiff in favour of the respondent no.1. On 9.3.2004 in view of application filed by the respondent no.1, respondent no.1 was added as a plaintiff. Thereafter, on 8.9.2004 the appellant filed counter-claim. By order dated 19.4.2005, in response to application filed by respondent no.1, original plaintiff was transposed as proforma defendant no.9. On 25.7.2011 the present plaintiff, i.e., respondent no.1 filed application under Order 7, Rule 11 of the C.P.C. for rejection of the counter-claim on the ground of being time barred under Article 113 of the Limitation Act.

3. On consideration of the rival contentions, order dated 5.9.2011 was passed by the learned trial court rejecting the counter-claim which order was confirmed by the lower appellate court and is under challenge in the present second appeal.

4. The following substantial question of law has been formulated for adjudication in this second appeal:

“Whether counter claim of the appellant is governed by the provision under Article 113 of the Limitation Act?”

5. In support of the appeal, it was contended by the learned counsel for the appellant that both the courts below failed to appreciate the nature of claim made by the defendant no.2-appellant in the counter-claim and the implications thereon of the provision under Order 8 Rule 6A of the Code of Civil Procedure. It was contended that in the counter-claim defendant no.2 has sought relief of declaration of right, title, interest and confirmation of possession over the suit property. A bare reading of the counter-claim would reveal that counter-claim of title of defendant no.2 is based on plea of adverse possession. It was argued that as the claim of defendant no.2 is based on the plea of adverse possession, the period of limitation of the counter-claim would be governed under Articles 64 and 65, and not under Article 113, of the Limitation Act.

6. In reply it was contended by the learned counsel for the respondent no.1 that relief prayed for in the suit by the original plaintiff as well as the present plaintiff is eviction of the defendant no.2 from the suit premises. The claim is based on title. Therefore, admittedly, defendant no.2 is in possession over the suit property. Present plaintiff being lis pendent purchaser has been allowed to step into the shoes of the original plaintiff initially as one of the plaintiffs and subsequently as the sole plaintiff. Original plaintiff has been relegated to the position of proforma defendant no.9. Defendant no.2 delivered his defence to the claim of title made in the suit by filing written statement way back on 6.8.1997. Thereafter, issues were settled on 2.2.2000. However, counter-claim was filed on 8.9.2004 when the suit was posted for recording of evidence of P.W.1 in course of her cross-examination by pleader commissioner. Articles 64 and 65 of the Limitation Act relate to suits for possession. In the present case, in his counter-claim defendant no.2 prays for declaration of title on the basis of possession. Therefore, admittedly, counter-claim is not a prayer for relief of possession. In such circumstances, both the courts below rightly held that the pe