The trial court improperly relied on defendant's documents and evidence in dismissing the plaint at the preliminary stage under Order VII Rule 11, highlighting the necessity for evidence before deciding on limitations.

JUDGMENT :

Sandeep Jain, J.

1. The instant appeal has been filed by the plaintiff under Section 96 CPC against the impugned judgment and decree dated 15.11.2025 passed by the court of Civil Judge(Senior Division)/FTC, Bulandshahr in O.S. No. 863 of 2020 Rajesh Kumar vs. Rakesh Kumar and others whereby defendant no.1's application no.125-C2 under Order VII Rule 11 CPC was allowed and consequently, the plaint was rejected.

Plaint case

2. Factual matrix is that the plaintiff/appellant filed O.S.no. 863 of 2020 against defendant of the 1st part Rakesh Kumar Sharma(defendant no.1) and defendants of the 2nd part Dinesh Kumar Sharma, Mukesh Kumar Sharma, Naresh Kumar Sharma and Urmi Sharma(defendants no.2 to 6) with the averments that the plaintiff and defendants are real brothers and sister, the defendants of the 2nd part are formal parties, against whom no relief has been claimed. It was further averred that the instant suit has been filed seeking declaration of Will dated 17.8.1998 and family settlement dated 25.4.2006.

3. It was further averred that the plaintiff 's mother Late Kamal Rani Sharma wife of Late Ramkrishan Sharma from her personal ornaments, stridhan, etc., purchased disputed property no.1 through sale deed dated 16.10.1962 and the disputed property no. 2 was purchased by the funds provided by plaintiff, plaintiffs father Late Ramkrishan Sharma and defendant of the 1st part, in the name of plaintiffs and defendant of the 1st part 's maternal uncle Durga Prasad through sale deed on 9.11.1967. It was further averred that plaintiffs father Ramkrishan Sharma died on 2.12.2005 and plaintiffs mother Late Kamal Rani Sharma died on17.9.1991.

4. It was further averred that in the year 1971 late Ramkrishan Sharma and defendant of 1st part jointly constituted a firm for conducting the business of Vishal cinema and for this the defendant of the 1st part and plaintiffs maternal uncle Durga Prasad transferred the disputed property no. 2 and the plot of land towards east of this property measuring 245 square yard to firm Vishal Enterprises on 21.9.1976 and thereafter, the plaintiff, plaintiffs father Ramkrishan Sharma, defendant of the 1st part Rakesh Kumar Sharma and defendant no. 3 Mukesh Kumar Sharma became its partners. It was further averred that on 17.12.1976 the sale deed of the above vacant plot measuring 245 square yard was executed by the firm in favour of defendant no.2 Dinesh Kumar Sharma, of which he is the sole owner in possession.

5. It was further averred that late Ramkrishan Sharma for managing the entire property of the family made a oral family settlement on 31.12.2003 in the presence of plaintiff, defendants and their relatives, which was made with the consent of all, so as to avoid any dispute in future. The above oral family settlement was reduced into writing as a memorandum in the presence of relatives on 25.4.2006, according to which the half portion of disputed property no.1 towards South was given to plaintiff and the remaining half portion towards North was given to defendant no.3 Mukesh Kumar Sharma and similarly, in disputed property no. 2 Dinesh Kumar Sharma and Rakesh Kumar Sharma became owners in possession of 1/2 –1/2 portion. It was further averred that the above family settlement was acted upon and in accordance with it, the respective parties are in possession of their respective shares as owners.

6. It was further averred that 5 – 6 years after the death of Ramkrishan Sharma, the intention of defendan