The cause of action for the suit is determined to have arisen within the limitation period based on the defendant's denial of 'Hiba.'

ORDER :

By the present civil revision application the applicant is challenging the order passed by the Trial Court rejecting the application of the defendant No.1/applicant under Order 7 Rule 11 (d) of the Code of Civil Procedure .

2. Brief facts leading to the filing of the present revision application can be summarised as under : -

The original plaintiff has a filed the suit for declaration of ownership and perpetual injunction in respect of suit property. The plaintiff claimed that she is legally wedded wife of defendant No.1. On 05/05/2016 dispute arose between the plaintiff and children of defendant No.1 from his second wife on the ground of suit properties, therefore, defendant No.1 started residing separately. The plaintiff contend that by way of oral “Hiba”, defendant No.1 had put her in possession of the suit property. The plaintiff also prayed declaration to that effect. The plaintiff further prayed that the transaction, if any, executed by defendants are not binding upon her and prayed for perpetual injunction restraining the defendants from alienating the suit land by any mode.

3. It is contended by the plaintiff that the registration of ‘Hiba’ of the suit property is not necessary. On 07/09/2021, the defendant No.1 refused ‘Hiba’ (Gift) executed in favour of the plaintiff, and therefore, the cause of action arose.

4. On the receipt of summons, the defendant No.1 appeared before the Trial Court. The defendant submitted that he is running a shop under name “Janseva Trading Company” and he is owner of suit property. The suit properties are mutated in his name and he is cultivating the suit property. As per Muslim Law, the plaintiff has no right to claim partition in the property of defendant No.1 in his lifetime. It is contended by the plaintiff that the date of ‘Hiba’ agreement is not mentioned in the plaint and agreement is not fulfilled. Further the sons of defendant No.1 born by second wife are not added defendant in the suit. It is further alleged that the cause of action arose on 05/05/2016 for the first time and the plaintiff failed to file suit soon after the said date. Therefore, the suit is also barred by limitation.

5. Defendant No.1 moved an application under Order 7 Rule 11 (d) of the Code of Civil Procedure praying rejection of plaint. It is contended that the suit is barred by limitation. That the plaint does not contend ingredients of “Hiba” and the suit is also barred by principles of Muslim Law. The Trial Court on consideration of the pleadings in the plaint and held that on 07/09/2022 the defendant No.1 denied “Hiba”, and that gave the cause of action to the plaintiff as per the pleadings in the plaint and the complete reading of the plaint of the plaintiff, it appears that though the plaintiff has not pleaded period, however, the plaintiff stated that the defendant No.1 denied the “Hiba” on 07/09/2022. The Trial Court held that as per Article 58 of the Limitation Act, the suit for declaration of ownership has to be filed within three years from accrual of cause of action. Having considered the plaint and the period of limitation prescribed, the Trial Court held that as per the pleading the cause of action arose in 2022 and the suit is filed in the same year. Therefore, the limitation being a mix question of fact and law in facts of instant case, the Court held that it may be decided after evidence along with other issues and application under Order 7 Rule 11 was dismissed.

6. The learned Advocate submitted before this Court that the suit is barred by limitation, so also the ingredients of “Hiba” are not mentioned in the plaint, and as such, the suit be rejected under order 7 Rule 11 of the Code of Civil Procedure .

7. The period of l