IMPORTANT POINT
Initial onus to prove that suit for declaration, partition and possession in respect of suit plot of land is within limitation, is on Plaintiffs exclusively.

R.D. Dhanuka, J.—By an order dated 22.9.2016 passed by this court a preliminary issue under Section 9A of the Code of Civil Procedure, 1908 was framed in view of the defendant raising an issue of limitation, as follows:

Whether the Suit as filed is barred by the law of limitations?

2. In view of the said preliminary issue framed by this court, both the parties through their respective counsel have addressed this court only on the said preliminary issue which is being dealt with by this court in the later part of the judgment. Some of the relevant facts for the purpose of deciding the preliminary issue are as under.

3. It is the case of the defendants that one Andrew Satiro D’cunha was the absolute owner of the property known as “Villa Bemvinda” comprising of land and house consisting of ground plus first floor situated at St, Alexius Road, Bandra (West), Mumbai 400050. The Andres D’cunha had five children i.e. two sons and three daughters namely Joseph, Annie, Lydia, Edwin and Ivy. On 20.2.1971 the said Andrew D’Cunha executed a Will. It is the case of the defendants that under the said Will dated 20.2.1971 the said Andrew D’Cunha bequeathed the said immovable property known as Villa Bemvinda and the land absolutely to his son Joseph. The said son Joseph was appointed as the sole executor of the said Will on 20.2.1971. The said Andrew D’Cunha expired at Mumbai. Sometime in the year 1979 the said Joseph D’Cunha who was appointed as an executor under the said Will filed Probate Petition No.851/1979 in this Court inter alia praying for grant of probate in respect of the Will dated 20.2.1971 executed by the said deceased Mr. Andres D’Cunha.

4. In the schedule annexed to the said testamentary petition, the executor included the land with building thereon known as Villa Bemvinda as the property forming part of the estate of the said deceased Andres D’Cunha. The plaintiffs filed their consent affidavits in the said Probate proceedings. It is the case of the defendants that the plaintiffs were thus fully aware that the said executor Mr. Joseph was claiming the entire property including land by virtue of the said Will dated 20.2.1971 executed by the said deceased. On 3.7.1980 this Court granted probate in favour of Joseph D’Cunha who was the executor of the said Will. It is the case of the defendants that the plaintiffs accepted the monetary consideration given to them under the said Will dated 20.2.1971 by the said deceased.

5. The plaintiffs filed a Misc. Petition bearing No.86 of 2013 in the said Petition No.851 of 1979 and impleaded the defendant Nos. 1 to 7 as parties to the said petition under Section 263 of the Indian Succession Act, 1925 inter alia praying for revocation of probate granted by this Court in favour of Joseph D’Cunha on 3.7.1980 in Testamentary Suit No. 851 of 1979 in respect of the Will dated 20.2.1971. The executor appointed under the said Will was Joseph Andrew D’Cunha. By a Judgment dated 14.10.2013 this Court dismissed the said Misc. Petition No.86 of 2013 filed by the plaintiffs herein. On 13.3.2014 the defendant Nos. 1 to 7 on one hand and defendant no.8 on the other hand entered into joint development agreement in respect of the said land and the building constructed thereon. On 13.3.2014 the Defendant No.8 had put up its board on the suit property.

6. On 22.12.2012, the defendant No.8 issued Public notice in the newspaper in Free Press Journal informing the members of the public that the defendants have agreed with defendant No.8 to jointly develop the piece and parcel of land admeasuring 639.6sq.meters known as Villa Bemvinda. It is the case of the defendants that the correspondence thereafter were exchanged between the Advocate for the plaintiffs and the Advocate for the defendants and thus, under development agreement was entered into between defendant Nos. 1 to 7 on one hand and defendant No.8 developer on the other hand at the relevant time in the month of March, 2014. On 26.6.2014 the pla