ORDER

1. This Civil Revision has been filed by the petitioner/defendant being aggrieved by the order dated 15.9.2023 passed by 5th Civil Judge, Senior Division, Indore in R.C.S.No.54-A/2016 whereby the application under Order 7 rule 11 of CPC filed by the petitioner has been rejected.

2. The brief facts of the case are that late Shri Basant Rao was the owner of several land including land bearing survey No.689 area 3.977 hectares of village Nihalpur Mundi. Shri Basant Rao had expired and he was survived by wife Smt. Leela Bai, son Mukesh and daughter Smt.Pushpa. Smt.Leela Bai and Mukesh had also expired and they are survived by respondents no.5 to 9. Late Smt. Leelabai, late Shri Mukesh and Smt. Pushpabai had executed a registered general power of attorney on 16.1.1997 in favour of Shri Munnalal, respondent No.3. The entire area of Survey No.689 except 1.406 hectare was already sold to various persons. On the basis of the aforesaid power of attorney, the respondent No.3 sold the remaining land i.e. 1.406 hectares to Shri Radheshyam, respondent No.2 by registered sale deed the possession thereof was handed over to him by registered sale deed 26.12.1998 and thereafter his name was also mutated in the revenue record. Thereafter, Leelabai, Mukesh and Smt.Pushpa Bai cancelled the said registered power of attorney by a registered cancellation deed dated 30.12.1998. Thereafter, Radheshyam, respondent No.2 who was also owner of survey No.689/1/2/2 along with 689/1/1 area respectively 0.050 hectare and 1.406 hectare had sold the said land by registered sale deed dated 31.3.2006 to the petitioner. It may also be mentioned that the said land was duly recorded in the name of the petitioner in the revenue record and the petitioner is in possession thereof.

3. It appears that on 9.1.2002 in connivance with respondent No.1 the respondents No.4 to 9 illegally, fraudulently and without any authority had sold 1 hectare of land out of survey No.689/1/1 to respondent No.1.Thereafter, respondent No.1 applied for mutation. In mutation proceedings, the petitioner filed objections. After considering the objections, Tehsildar vide order dated 14.6.2006 rejected the mutation application filed by the respondent No.1. It has also been held that the respondents No.4 to 9 had no subsisting title to the land and respondent No.1 should file a civil suit and get the sale deeds set aside.

4. Respondent No.1 filed an appeal before the Sub Divisional Officer. The said appeal was also dismissed on 16.7.2007. Thereafter, respondent No.1 filed a second appeal before the Additional Commissioner, which was also dismissed on 8.6.2015. Thereafter, respondent No.1 filed a revision before the Revenue Board, Gwalior. The revision was also dismissed on 14.6.2016. Respondent No.1 filed the present civil suit for setting aside the sale deeds, declaration and permanent injunction on the ground that power of attorney dated 16.1.1997 was cancelled on 30.12.1998, therefore, the sale deed executed by respondent no.3 in favour of respondent No.2 was illegal.

5. After notice, the petitioner appeared before the trial Court and filed application under Order 7 rule 11 of CPC on the ground that the present suit filed in the year 2016 is clearly barred by time under the provisions of the Limitation Act because in any case the respondent No.1 was aware about the sale deeds in the year 2006, but the respondent no.1 has sought to challenge the registered sale deeds of the year 1998 and 2006 by filing the suit in 2016. After taking the reply and hearing the learned counsel for the both the parties, the trial Court rejected the application filed by the petitioner/defendant holding that it is mixed question of fact and law which can be decided after taking the evidence of both the parties.

6. Being aggrieved by the aforesaid impugned order, the petitioner has filed this revision on the ground that the impugned order passed by the trial Court is perverse, contrary to law and facts and circumstance