Limitation is a mixed question of fact and law, requiring evidence for determination; a plaint cannot be dismissed at the outset if it presents a legitimate claim under the law.

JUDGMENT :

SASHIKANTA MISHRA, J.

The Petitioner, who is Defendant No.2 in C.S.No. 264 of 2019 pending in the Court of learned Civil Judge (Senior Division), Chandikhole has filed this writ petition challenging the order dated 15.07.2023 passed by the learned District Judge, Jajpur in Civil Revision No.1 of 2022 confirming the order dated 05.03.2022 passed by the trial Court.

2. For convenience, the parties are referred to as per their respective status before the trial Court.

3. The facts of the case are that the present Opposite Party Nos.1 to 7 being the Plaintiffs have filed the suit against the present Petitioner and Opposite Party No.8 seeking a direction to them to execute a sale deed in their favour in respect of the suit land as per agreements dated 09.02.2009 and 16.02.2009 with further declaration of their right, title, interest and possession and for a declaration that the sale deed dated 16.11.2012 is illegal, void and not acted upon.

4. The case of the Plaintiffs is that they are the successors of one Kelu Rout, in whose favour an agreement was executed by Rasananda Rout, who had ‰ share over the ancestral properties. Rasananda executed two unregistered agreements for sale on 09.02.2009 and 16.02.2009 with Kelu Rout to meet the expenses of his daughter’s marriage and received consideration of Rs.4,80,000/- and delivered possession. However, Rasananda executed a sale deed on 16.11.2012 in favour of Defendant No.2 (Petitioner) without consideration and delivery of possession behind the back of the Plaintiffs. The Plaintiffs came to know about this when they received summons in C.S. No.515 of 2015 in the year 2015. They asked Defendant No.1 for execution of sale deed, who assured them that he would do so after cancellation of the sale deed dated 16.11.2012 and after obtaining permission under Section 34 of the OCH & PFL Act. Again, Defendant No.1 was requested in January, 2018 and ultimately, he refused to execute the sale deed on21.10.2019. Hence, the suit.

5. After appearing in the suit upon receiving summons, Defendant No.2 filed his written statement, inter alia, questioning its maintainability. He also filed an application under Oder-VII Rule 11 of CPC for rejection of the plaint on the ground of limitation inasmuch as the plaintiffs having had knowledge of execution of the sale deed by Defendant No.1 in favour of Defendant No.2 in the year 2015, filed the suit in 2019.

6. After hearing the parties, the trial Court held that limitation is a mixed question of fact and law which is to be determination during trial. As such, the petition was rejected. The Plaintiffs filed revision against the order before the learned District Judge. Learned District Judge, who, by the order impugned, also rejected the same, more or less on the same ground as the trial Court.

7. Heard Mr. T.K. Mishra, learned counsel for the Plaintiffs and Mr. S.P. Mishra, learned Senior Counsel with Mr. M.R. Dash, learned counsel for Defendant No.2-petitioner.

8. Mr. T.K. Mishra would argue that a suit which is clearly barred by limitation cannot be entertained and therefore the plaint can be rejected under Order VII Rule 11(d) of CPC. In the plaint itself, the Plaintiffs have admitted that they came to know about the sale deed dated 16.11.2012 executed by Rasananda in favour of Defendant No.2 in the year 2015 when they received summons in C.S. No.515 of 2015. The suit having been filed in October, 2019 is therefore clearly barred by limitation. Even otherwise, accepting the plea taken by the Plaintiffs that they requested Defendant No.1 to execute sale deed in terms of agreements dated 09.02.2009 and 16.02.2009, which he refused in January 2016, the suit ought to have been filed by January 2019. But the suit having been filed i