At the stage of considering an application under Order 7 Rule 11 of CPC, only the averments made in the plaint are to be looked into, and the ground of limitation may be raised in the written statement.

ORDER :

Rajeev Kumar Shrivastava, J.

1. The order dated 22/1/2021 passed by Civil Judge Class-I, Goliad, District Bhind in Civil Suit No. 56A/2020, has been called in question by way of present revision, whereby the court below has dismissed the application under Order 7 Rule 11 CPC filed by the present petitioner/defendant.

2. Briefly stated facts of the case are that respondent No. 1/plaintiff filed a suit for declaration of right, permanent injunction and partition in which it is prayed that the sale deed dated 26/6/2009 be declared null and void. It is pleaded by the plaintiff in the suit that Tularam was the owner of the disputed property. After his death, share of respondent No. 1/plaintiff was recorded in the revenue record as 1/5th along with other legal heirs of Tularam. Thereafter, Bithala Bai died in the year 2017. It is further pleaded in the plaint that respondent No. 1/plaintiff is residing in her in-laws house and was getting the land cultivated through son of petitioner/defendant No. 1 but since year 2017, benefit of crop was not given to the plaintiff. When the plaintiff contacted the patwari, it came to her knowledge that the name of respondent No. 1/plaintiff is not recorded in the revenue record and petitioner/defendant No. 1 was the owner of the disputed property, who sold the land to respondent No. 5 Urmila Devi. It is further pleaded in the plaint that son of the petitioner/defendant No. 1 by creating a forged document in the name of respondent No. 1/plaintiff and defendant Nos. 2 to 4 got executed the sale deed dated 26/6/2009 and thereafter sold the property to respondent No. 5 Urmila Devi by sale deed dated 30/6/2016. In that regard, a complaint was also filed before the JMFC under Sections 420, 467 and 468 of IPC which was dismissed on 17/3/2020 and, thereafter, present suit was filed by the plaintiff praying for declaring the sale deed dated 26/6/2009 null and void and for permanent injunction.

3. It is submitted by learned counsel for the petitioner/defendant No. 1 that the petitioner has specifically raised preliminary objection about maintainability of the suit filed by respondent No. 1/plaintiff before the Court below. In the suit, it is pleaded by respondent No. 1/plaintiff that Tularam was the owner of the disputed property, who left behind his wife Bithala Bai, two sons and two daughters. Thereafter, Bithala Bai has died in the year 2017. Respondent No. 1/plaintiff and defendants No. 2 to 4 are the legal heirs of deceased Tularam. It is further submitted that in the suit, petitioner/defendant No.1 filed an application under Order 7 Rule 11 CPC by objecting that the plaintiff was the party to the sale deed dated 26/6/2009 and plaintiff had not valued the property correctly and had also not paid ad-valorem court-fee, which is required as per law. The suit was also barred by limitation. Reply to the application was filed but the Court below has erred in rejecting the aforesaid application by the impugned order dated 22/1/2021. Hence, prayed for setting aside the impugned order by allowing the present revision.

4. Heard learned counsel for the petitioner and perused the material available on record.

5. On perusal of record, it is apparent that the civil suit has been filed by respondent No. 1/plaintiff wherein application under Order 7 Rule 11 CPC was filed by the present petitioner/defendant No. 1.

6. Learned counsel for the petitioner placed reliance upon the judgment passed by the Supreme Court in the case of Suhrid Singh @ Sardool Singh vs. Randhir Singh & Ors., (2010) 2 SCC 112 as well as on the judgments passed by this Court in the cases of Ambika Prasad & Ors. vs. Shri Ram Shiromani @ Chandrika Prasad Dwivedi & Anr., 2011 (3) MPLJ 184 and Halka Kushwaha & Ors. vs. Pyarelal Kachhi & Ors., 2017 (2) MPLJ 428 and has submitted that as the plaintiff was party to the sale deed, therefore, ad-valorem court-fee is required to be paid.

7. Order VII Rule 11 of the Code of Civil Procedure runs as under:-

"Ord