1. This petition filed under Article 227 of the Constitution of India takes exception to the order dated 20.11.2017 (Annxure P-1) whereby the application filed by the petitioners/ defendants under Order 14 rules 1 and 2 CPC is dismissed by the Court below.

2. The admitted facts between the parties are that in the instant civil suit filed for declaration of title and nullifying the sale deeds, the petitioners/ defendants initially filed an application under Order 7 rule 11 CPC for dismissal of the suit on the ground of limitation. The Court below by order dated 27.2.2015 rejected the said application and said order of Court below, in absence of any further challenge, has attained finality. The petitioners defendants after completion of pleadings and framing of issues, filed an application dated 7.9.2017 (Annexure P-5) with a prayer to decide issue No. 3 as a preliminary issue.

3. Shri Aditya Adhikari, learned Senior counsel contends that issue No.3 is relating to limitation and goes to the root of the matter. The Court below should have decided the said issue as a preliminary issue. Reliance is placed on Pandurang Dhondi Chougule v. Maruti Hari Jadhav and others [AIR 1966 SC153], to bolster the contention that plea of limitation or a plea of res judicata is a plea of law which is concerned with the jurisdiction of the Court which tries the proceedings. The Court below has erred in treating the said question as mixed question of fact and law. Learned senior counsel further submits that the stage of Order 7 rule 11 is over and at appropriate stage application under Order 14 rules 1 and 2 was filed. He placed heavy reliance on Order 14(2)(2) of the CPC and urged that the Court below was under a legal obligation to decide the issue No. 3 as a preliminary issue. The Court below has erred in not deciding the said issue as a preliminary issue.

4. Per contra, Shri Umesh Shrivastav, learned counsel for respondents No.1 and 2 supported the impugned order. He submits that once an application under Order 7 rule 11 CPC claiming same relief is dismissed by the Court below and it was not found covered under Order 7 rule 11(d), the suit has to be decided in one go and issue of limitation cannot be decided as a preliminary issue. He placed reliance on Ramdayal lUmraomal v. Pannalal Jagannath [1979 JLJ(FB) 720] and Shanti Shukla v. Shanti Bai and another [2005(2) MPLJ 114] to contend that question of limitation is essentially a mixed question of fact and law and, therefore, the Court below has not committed any error of law in not deciding the question of limitation as a preliminary issue. Lastly, reliance is placed on Chhotanben and another v. Kirtibhai Jalkrushnabhai Thakkar and others [2018(6) SCC 422], to urge that the question of limitation can be decided at appropriate stage.

5. No other point is pressed by learned counsel for the parties.

6. I have heard the parties at length and perused the record.

7. During the course of argument, learned senior counsel handed over the order of the Court below dated 27.2.2015 whereby an application preferred by the petitioner under Order 7 rule 11 CPC was disallowed by the Court below. A plain reading of this order shows that the plaintiffs’ statement that they came to know about the impugned sale deed on 22.6.2004 was not disbelieved at this stage. The Court opined that this is a question of fact which can be decided at the stage of final hearing. Admittedly this order, in absence of any further challenge to it has attained finality.

8. The bone of contention of petitioner is that in view of Constitution Bench judgment of apex Court in the case of Pandurang Dhondi Chougule (supra), the question regarding limitation must be treated to be a plea of law and, therefore, the Court below be directed to decide the issue No. 3 as a preliminary issue. This point is certainly ponderable one. The judgment of Pandurang Dhondi Chougule (supra), was considered by Supreme Court in (2015)6 SCC 412 (Foreshore Coop