A plaint cannot be rejected under Order VII Rule 11 without a trial when the averments establish a prima facie claim of dispossession, particularly against the state, as the determination of property rights and limitation for recovery of possession involving mixed questions of fact and law require evidence.

ORDER (ORAL)

Meenakshi Madan Rai, J.

1. By the impugned Order dated 30-08-2023, the Court of the Principal District Judge, Gangtok, Sikkim, in Title Suit No.10 of 2018 (Som Kumar Subba vs. The Secretary, Urban Development Department, Government of Sikkim and Others), non-suited the Plaintiff (Appellant herein), on a Petition filed by the Defendant No.1 (Respondent No.1 herein) under Order VII Rule 11(a) and 11(d) of the Code of Civil Procedure, 1908 (hereinafter, the “CPC”). In the impugned Order, the Trial Court went on to discuss the facts as disclosed in the Plaint and observed inter alia that though the Appellant would claim that the properties of Namphok (sic., Nampong) Block, under Lingdok Circle, fell in the share of his father, there is no Partition Deed on record which would support his claim. That, the Plaint consciously did not mention which properties fell into the share of the other three sons of Late Chandra Man Limboo and if there were some more properties at Phodong, those properties were not detailed. The Plaint also mentioned that the Appellant’s father had sold some lands, but neither the vendee nor the time of such transaction was known. The Plaint was silent as to why the properties were not yet mutated or recorded in the name of the Appellant or his five siblings. As the Appellant is not the title holder or in possession of the said properties, the Court could not deal with his vague claims that since plot nos. 329 and 330 were once registered in the name of his grandfather, he would have a right (after more than 60 years) to agitate and question the manner in which it was transferred to the State Government. It was thus concluded that the Plaint did not disclose a cause of action to proceed further. Under Order VII Rule 11(d) of the CPC; Whether the Suit is barred by any Statute, the Trial Court observed that in the words of the Appellant himself at Paragraph 26 “………… the cause of action first arose on July 2012 when ………”. If this be so, then, according to Article 58 of the Limitation Act, 1963 (hereinafter, the “Limitation Act”), the Plaint ought to have been filed within three years, i.e., within July, 2015, but it was filed only in August, 2018, i.e., six years after the right to sue first accrued. The Trial Court went on to discuss the decision of the Supreme Court in Khatri Hotels Private Limited and Another vs. Union of India and Another ¹ which discussed the provisions of Article 58 of the Limitation Act. The (2011) 9 SCC 126 Court also was of the view that the claim of the Appellant that Articles 64 and 65 of the Limitation Act would apply in this case could not be countenanced, since these provisions dealt with adverse possession. The Court opined that the claim of the Appellant against the State Government was an attempt to disturb the peaceful possession of the Defendants No.6A, 6B, 7 and 8 (Respondents No.6A, 6B, 7 and 8 herein) and hence, held that the Suit is barred both for lack of cause of action and by the law of limitation.

2. Learned Senior Counsel for the Appellant while assailing the observations made by the Trial Court, advanced the argument that, the Appellant has indicated adequate cause of action for the reason that the property being plot nos.329, 330 and 331, fell in his partition share from 1998, of which he has been in possession. That, the Respondent No.1 (Secretary, Urban Development Department) however has recorded plot nos. 330, 329 and 331 in the name of the Government