The legal principle established holds that a plaint cannot succeed if prior documents affecting title are not challenged and the suit is barred by limitation.

O R D E R

The first defendant in O.S.No.114 of 2013 on the file of the Additional Subordinate Court, Tirunelveli has filed the above revision petition challenging the dismissal of an application filed under Order 7 Rule 11 C.P.C.

(A)Facts leading to the filing of this revision petition are as follows:

2.The suit schedule properties were purchased by the father of the plaintiff namely Shanmugam Konar on 18.10.1978 utilising income from the ancestral property. The said property was enjoyed as Hindu undivided family property. After the death of Shanmugam Konar, the plaintiff and the first defendant orally partitioned the property. In the said partition, eastern half (shown as 2nd schedule in the suit) was allotted to the plaintiff and the western half (shown as 3rd schedule in the suit) was allotted to the defendant.

3.While the father was alive, the 1st defendant had arranged for sale deed to be executed by his father in favour of the 6th defendant on 20.02.1998 for an extent of 4.52 acres which was ultimately purchased by the first defendant on 29.12.1998. The plaintiff also fraudulently created a power deed as if the said Shanmugam Konar had executed the same in favour of the third party on 12.01.1999. Based upon the said power deed, the first defendant had purchased the property on 12.01.1999. These two fraudulent sale deeds came to the knowledge of the plaintiff 5 years prior to the filing of the suit.

4.As far as the second schedule property is concerned, the defendants 2 to 5 who are the legal heirs of Shanmugam Konar had executed a release deed on 10.06.2008 and thus the plaintiff has become the absolute owner of the suit schedule property.

5.Based upon the above said averments, the plaintiff had filed the present suit for declaration of title over the 2nd schedule property and for permanent injunction. The 2nd and 3rd schedule properties put together form the first schedule property. Along with the plaint, the plaintiff had filed 12 documents. The release deed dated 10.06.2008 said to have been executed by the defendants 2 to 5 in favour of the plaintiff is shown as plaint Document No.5.

6.The defendants had filed a written statement raising objection to the maintainability of the suit without challenging the sale deeds and also contending that the suit is barred by limitation. After cross examination of PW1 was completed, the first defendant had filed I.A.No. 31 of 2017 to reject the plaint on the ground that having not challenged the sale deeds in favour of the plaintiff and the said prayer having become time barred, the plaint has to be rejected.

7.The plaintiff had filed a counter contending that the application for rejection of plaint has been filed much belatedly and the contentions raised by the first defendant are the subject matter of trial.

8.The trial Court had accepted the contention of the plaintiff and had dismissed the application filed under Order 7 Rule 11 C.P.C. Challenging the same, the present revision petition has been filed by the first defendant.

(B)Submission of the counsels:

9.According to the learned counsel appearing for the revision petitioner, as per averments in Para-3 of the plaint, the plaintiff was aware of the two sale deeds in favour of the first defendant, five years prior to the filing of the suit. Even on the date of filing of the suit, the suit has become time barred. Without challenging those documents, the present suit for declaration of title is not maintainable. It does not require oral and documentary evidence to arrive at a conclusion that the suit is barred by limitation. Therefore, the trial Court was not right in rejecting the said application.

10.He had relied upon the judgements of the Hon'ble Supreme Court reported in 2019 (2) CTC 823 ( Raghwendra Sharan Singh Vs. Ram Prasanna Singh (dead) by Lrs.) and (2020) 7 SCC 366 (Dahiben Vs. Arvindbhai Kalyanji Bhanusali (Gajra) dead through legal representatives and others) to impress upon the Court that by clever drafting, the plaintiff c