The court ruled that a plea of limitation cannot be raised under Order 7 Rule 11, as it requires evidence and cannot be decided at the preliminary stage.

JUDGMENT

The above Second Appeal throws up an interesting question of law as to whether the plea of limitation can be raised in an Order 7 Rule 11 application under the Code of Civil Procedure , when the Hon'ble Supreme Court had granted liberty to the plaintiffs to seek the relief of declaration of title. The parties are described as per their litigative status before the trial court.

2. The appellants are the plaintiffs, who suffered concurrent findings before the Courts below, in an application filed by the defendants to reject the plaint on the ground that it is barred by Limitation. The material facts of the case, for better appreciation of the facts and the legal position are culled out in brief hereunder:-

3. The suit property originally belonged to one Karuppa Gounder, who had purchased it under a sale deed dated 15.02.1933, from Sennimalai Gounder. Subsequent to the purchase, Karuppa Gounder sold the house property measuring 30 x 20 feet with specific boundaries to his daughter-in- law, Pechiammal, who is the wife of the first defendant in the suit, under a sale deed dated 21.08.1972. Thereafter, the first defendant and one Velusamy, jointly purchased the suit properties from the said Karuppa Gounder, from whom, the first plaintiff purchased the undivided ½ share of Velusamy under sale deed dated 25.07.1974, and the husband of the second plaintiff and father of plaintiffs 3 to 7 purchased the other undivided ½ share of the first defendant, in and by sale deed dated 30.12.1976.

4. The specific case of the plaintiffs is that they have mutated revenue records and they have been in peaceful possession and enjoyment of the suit property, paying kist to the revenue. After the execution of the two sale deeds in favour of the plaintiffs, the first defendant and Velusamy, who did not have any right, title or interest over the suit properties, illegally created a lease deed dated 03.07.1995 in favour of the first defendant and also a general power of attorney on 17.10.1997, in and by which, Velusamy empowered the first defendant to deal with his alleged ½ share in the suit properties. According to the plaintiffs, neither the first defendant nor Velusamy had any right to execute the power of attorney or the lease deed as they had already sold their interest in the suit properties in favour of the plaintiffs. Both the documents were not binding on the plaintiffs and an earlier suit in O.S.No.80 of 2000 had been filed to declare the lease deed dated 03.07.1995 and the general power of attorney dated 17.10.1997 as null and void.

5. It is also stated by the plaintiffs that in the said suit in O.S.No.80 of 2000, the plaintiffs filed an application in I.A.No.69 of 2005, seeking amendment of the plaint to include the prayer for declaration of title and also for mandatory injunction to remove the motor service connection installed in the well subsequent to filing of the suit in O.S.No.80 of 2000. However, the trial Court dismissed the application in I.A.No.69 of 2005 seeking amendment on 28.03.2005 and as against the same, the plaintiffs preferred a revision in CRP (PD)No.977 of 2005. The said revision was dismissed by this Court on 13.03.2006. The plaintiffs preferred a Special Leave Petition in C.C.No.8882 of 2006 and the same was also dismissed on 27.11.2006.

6. An application in I.A.No.225 of 2007 was subsequently filed before the District Munsif Court, Palladam, where the suit was pending, seeking permission to withdra