JUDGMENT :

Rajiv Joshi, J.

1. This is defendant's second appeal under section 100, Code of Civil Procedure against the judgment and decree dated 28.2.2017 passed by the additional District Judge Court No. 14, Allahabad in First Appeal No. 301 of 2013 (Raj Bahadur v. Rama Bai Trust and others) whereby the appeal was allowed. The lower Appellate Court by the impugned judgment and decree has set aside the judgment and decree dated 4.3.2013 passed by the Trial Judge in Original Suit No. 722 of 2009 (Raj Bahadur v. Ramabai Trust); decided Issue No. 7 in favour of the plaintiffs and held that the plaint cannot be rejected under Order VII, Rule 11 (d) of C.P.C

2. The relevant facts for consideration in the present appeal are that one Smt. Latifanbai @ Rama Bai had created a Trust on 7th August, 1949 namely Rama Bai Trust with regard to the property House Nos. 49, 50, 51 and 52 situated at Mohalla Meerganj including other properties situated at Alopibagh District- Allahabad for public purposes (Dharmsala). Since, several tenants were residing in the aforesaid houses and the purpose for creating the trust was not being fulfilled, therefore, all the trustees after the death of Smt. Latifanbai @ Rama Bai decided to sell the property and accordingly filed an application before the District Judge, Allahabad seeking permission to sell the property as mentioned above.

3. The District Judge Allahabad vide order dated 14.5.1968 granted permission to sell the aforesaid property belonging to the Trust. On 21.5.1975, this Court appointed official trustee of the aforesaid trust who has full authority and power to sell the aforesaid property.

4. Subsequently, a sale-deed was executed by the Trustee in respect of house No. 49 situated at Meerganj, Allahabad for the sale consideration of Rs. 70,000/-. The said sale-deed was registered on 15.1.1985 in the office of Sub-Registrar, Allahabad. Subsequently, the plaintiff-respondent No. 1 Ram Bahadur filed original Suit No. 722 of 2009 by impleading the Rama Bai Trust as the defendant No. 1 and the appellant as defendant No. 2 for declaration to the effect that the sale-deed dated 12.10.1984 (registered on 15.1.1985) is null and void.

5. In the plaint, it was specifically stated that the plaintiff-respondent had no knowledge about the sale-deed dated 12.10.1984 registered on 15.1.1985 and he acquired the knowledge of the same in April, 2009 and the suit was filed on 30.5.2009.

6. The defendant-appellant contested the matter and filed his written statement on the ground that the suit is barred by limitation as the plaintiffs had the knowledge about the execution of the sale-deed in question and even earlier he had filed Original Suit No. 969 of 1996 for permanent injunction in which the defendant-appellant was the defendant No. 2 and therefore, the plaint is liable to be rejected under Order VII, Rule 11 (d) of C.P.C.

7. The Trial Court on the basis of the pleadings of the parties framed following 9 issues on 15.5.2012:

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8. One of the issues i.e., Issue No. 7 regarding rejection of plaint under Order VII, Rule 11 (d) of C.P.C. was decided by the Trial Judge against the plaintiffs and accordingly the plaint was rejected considering the averments made in the written statement, vide judgment and decree dated 4.3.2013. Against the decree of the Trial Court, the plaintiff filed appeal No. 301 of 2013 which was allowed by the lower Appellate Court