The application of Order 7 rule 11 CPC and the principle that only plaint averments are required to be seen while deciding the application. The court also emphasized that the question of limitation is a mixed question of law and fact and can only be addressed after parties lead evidence.

JUDGMENT :

Rohit Arya, J.

1. This civil revision petition under section 115 CPC by defendants No. 1 & 2 is directed against the order dated 04/01/2021 passed by 1st Civil Judge, Class-II Jaora, District Ratlam, dismissing an application filed under Order 7 rule 11 CPC in RCS A/000000037/2020.

2. The respondents/plaintiffs have filed a civil suit on 07/03/2020 seeking declaration that (i) the suit land described in the plaint is of their ownership, (ii) further declaration that the sale deeds dated 01/06/1972, 26/03/1983 & 28/03/1983 be declared as null and void (iii) to deliver possession of 24 bighas of land out of 32 bighas of the suit land and (iv) for permanent injunction restraining the defendants from raising construction or alienating the suit land.

3. It is averred in the plaint that 32 bighas of land was purchased by one Abdulla Khan in the name of his daughters, namely; Smt. Munavar Dulhan and Smt. Chanda Be and in the revenue record their names have been recorded. Since the land was purchased by Abdulla Khan, therefore, his son Abdul Karim was having half share according to muslim law after death of Abdullah Khan. The plaintiffs are legal representatives of Abdul Karim.

4. The defendants in their application under Order 7 rule 11 CPC contended that the plaintiff has not filed the original sale deed of suit land purchased by late Abdulla Khan, therefore, the claim for half share in favour of predecessor of the plaintiffs, i.e., Abdul Karim is not maintainable, as the land stands mutated in the names of abovesaid two daughters of late Abdulla Khan, as such they are owners. Besides, the declaration sought for that the sale deeds dated 01/06/1972, 26/03/1983 and 28/03/1983 as null and void is palpably barred by time.

5. The trial Court while rejecting the objection of not filing the original sale deed in favour of late Abdulla Khan has concluded that there is specific averment made in the plaint regarding purchase of land by Abdulla Khan, therefore, his son, Abdul Karim was entitled for half share after death of Abdulla Khan. The plaintiffs being legal representatives of late Abdul Karim are entitled for half share. Hence, mere non-filing of the original sale deed in favour of Abdulla Khan shall not disentitle the plaintiffs to prove their case as pleaded.

6. Another objection that the suit is barred by time, the trial Court concluded that the plaintiffs have specifically averred (paragraph 8 of the plaint) that they acquired knowledge of the instant sale deeds only after having read a public notice on 28/01/2019 issued by defendants No. 1 to 4 in Hindi daily news paper, Dainik Bhaskar. Thereafter, after collection of all relevant documents, the suit has been filed. In view of specific pleading on the question of limitation, the suit cannot be dismissed on the ground of limitation. It is settled law that question of limitation is a mixed question of law and fact and can only be addressed after parties lead evidence.

7. Besides, the trial Court has also rejected the objection against valuation and court fee. The trial Court has concluded that the there is a specific plea in the plaint that the plaintiffs are not party to the alleged sale deeds and they did not have knowledge or consent for the same. Hence, the fixed court fees has been affixed at the rate of twenty times of the land revenue of the suit land has been paid in terms of section 7(v) and its proviso (2) and (3) of the Court Fees Act. The contention of the defendants that ad valorem court fee should have been paid upon market value of the sale deeds, the trial Court has concluded that the question of valuation and court fee in the obtaining facts and circumstances are also mixed question of law and fact, therefore, the same can be addressed only after the parties lead evidence.

8. Shri V.K. Jain, learned senior counsel criticizing the impugned order tried to persuade this Court that the trial Court has committed jurisdictional error while rejecting the application as