Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2022 Supreme(All) 1673

IN THE HIGH COURT OF ALLAHABAD
ROHIT RANJAN AGARWAL, J.
Narayan Singh and Others – Appellants
Versus
Ratan Lal (Since Deceased) and Others – Respondents
Second Appeal No. 571 of 2022
Decided On : 22-07-2022

Advocates:
Advocate Appeared:
For the Appellants : Alok Kumar Yadav, Ishwar Chandra Tyagi.
For the Respondent: Nipun Singh.

The question of limitation is a mixed question of law and fact, and the suit cannot be thrown out at the threshold without framing issues and considering evidence.

Headnote:
Order 7 Rule 11 - Limitation - C.P.C. - [FACT OF THE CASE] Plaintiffs filed a suit for cancellation of a Will dated 28.01.1982, registered on 11.02.1982, after coming to know about it in 2017. Trial court dismissed the suit under Order 7 Rule 11(d) C.P.C. Lower appellate court set aside the order, leading to the present appeal. [FINDING OF THE COURT] The lower appellate court found that the trial court had wrongly dismissed the suit based on the question of limitation, as it was a mixed question of law and fact. [ISSUES] The main issue was whether the suit was barred by limitation under Order 7 Rule 11(d) C.P.C. [RATIO DECIDENDI] The court held that the question of limitation is a mixed question of law and fact, and the suit cannot be thrown out at the threshold without framing issues and considering evidence. [FINAL DECISION] The second appeal was dismissed as no substantial question of law arose.

JUDGMENT :

ROHIT RANJAN AGARWAL, J.

1. Heard Sri Alok Kumar Yadav, learned counsel for the appellants and Sri Nipun Singh, learned counsel for the respondents.

2. This is defendants’ second appeal filed under Section 100 of Code of Civil Procedure, 1908 (hereinafter referred to as ‘C.P.C.’) against judgment and order dated 28.04.2022 passed by Additional District Judge, Court No. 3, Gautam Budh Nagar in Civil Appeal No. 3 of 2020, setting aside the order of trial court dated 24.12.2019 passed in Original Suit No. 88 of 2018 allowing the application under Order 7 Rule 11(d) of C.P.C. and rejecting the plaint of the plaintiffs-respondents.

3. Facts in nutshell, are that plaintiffs, Ratan Lal and Rewati were sons of Itwari Lal and had the third brother named Kirori. Kirori had died earlier. He had one son, Dalu who was issue-less, and had three real sisters, while had one step sister, Rampyari. The three sisters of Dalu had predeceased. According to plaint averment, Dalu died on 02.02.1981, while a Will was said to have been prepared on 28.01.1982 which was registered before the Sub-registrar, Khurja, District-Bulandshahar on 11.02.1982 bequeathing the agricultural land in favour of Rampyari. Rampyari before her death had executed a Will in favour of defendants-appellants on 30.10.2015. The plaintiffs-respondents were in possession over the property and they came to know about the said fact on 11.12.2017 and 27.05.2018, thus, a suit for cancellation of the Will dated 28.01.1982 registered on 11.02.1982 was filed being Original Suit No. 88 of 2018. The said suit was contested by defendants-appellants and a written statement was filed on 16.10.2018 alleging that Dalu had died on 20.09.1984. An application under Order 7 Rule 11(d) C.P.C. was filed on 16.10.2018 along with an affidavit being Paper No. 14 (Ga)(2) for dismissing the plaint as the suit being barred by limitation. The trial court on 24.12.2019 allowed the application filed under Order 7 Rule 11(d) of the appellants and dismissed the suit. Against the said judgment, Civil Appeal No. 3 of 2020 was filed before Additional District Judge, Court No. 3, Gautam Budh Nagar and the court below framed following point of determination:

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4. The lower appellate court found that question of limitation was a mixed question of law and fact and the trial court having considered the documentary evidence filed in support of the plaint had wrongly dismissed the suit, and thus, allowed the appeal vide judgment dated 28.04.2022 and set aside the order dated 24.12.2019. Hence, the present appeal.

5. Sri Alok Kumar Yadav, learned counsel for the appellants submitted that the Will executed by Dalu in favour of Rampyari was of the year 1982 and the suit was filed in the year 2018 i.e. after more than 36 years and thus court below had rightly rejected the suit under Order 7 Rule 11 of the Code. According to him, the trial court after going through the averment of plaint found that plaintiff had failed to disclose that when he got the knowledge of execution of a Will and once the name of appellants were recorded over the revenue records on the basis of Will of 1982 which was well within the knowledge of the plaintiffs-respondents, the lower appellate court was not justified in reversing the order of the trial court.

6. Learned counsel further submitted that Rampyari in the year 2015 had executed a Will which till date has remained unchallenged and the copy of the Khatauni filed by plaintiffs before the court below clearly establishes the fact that they were aware of the names recorded in the revenue records of the defendants and thus by simply alleging that the plaintiffs acquired knowledge in the year 2017 would not make the suit maintainable. According to him, the litigation is vexatious and liable to be rejected under Order 7 Rule 11 C.P.C. He has relied upon Article 59 of Schedule 1 of the Limitation Act wherein the period pres