A cause of action must be established through material facts, and cannot be dismissed without a full trial, especially when based on a registered will.

JUDGMENT:

This Second Appeal is filed against the judgment and decree dated 09.12.204 in A.S.No.4 of 2023 on the file of the V Additional District Judge at Bodhan, Nizamabad District, wherein and whereby the judgment and decree dated 06.01.2023 in I.A.No.78 of 2022 in O.S.No.1 of 2021 on the file of the Senior Civil Judge, Bodhan, was set aside.

2. Heard Sri M.Achuta Reddy, learned counsel for the appellants. Perused the record.

3. The appellants are defendants and respondents are plaintiffs. For convenience, the parties are hereinafter referred to as they are arrayed before the trial court.

4. Brief facts leading to filing of the present second appeal are that plaintiffs-respondents have filed the suit in O.S.No.1 of 2021 on the file of Senior Civil Judge at Bodhan for declaration of title and recovery of possession in respect of open plot No.6-A to extent of 14,000 sq.feet=1555.55 sq.yds situated at back side of officers quarters, Rakasipet, Bodhan Town and they have also sought for cancellation of Gift Settlement Deed vide document No.11143 of 2019 dated 05.10.2019 and cancellation of entries in Municipal records and consequential injunction. It is contended that Sri Shetkar Haugi Rao s/o Lalappa was the owner and possessor of the suit property and he has acquired the same vide sale deed bearing document No.6444 of 1967 dated 07.12.1967; that the plaintiffs are claiming the suit schedule property basing on the will deed bearing No.24 of 2019 dated 01.10.2019. Defendants filed written statement and denied the averments made in the plaint and have taken specific stand that plaint does not disclose cause of action and that the suit is barred by limitation. Defendants further contended that they are in possession of the suit schedule property by virtue of unregistered sale deed dated 16.08.1991 and notarized affidavit of Haugi Rao.

5. During the pendency of the suit defendants filed an application in I.A.No.78 of 2022 under Order 7, Rule 11 (a) and (d) of CPC for rejection of the plaint on the ground that suit does not disclose cause of action and is also barred by limitation and therefore, appeal is also liable to rejected at threshold.

6. Plaintiffs filed counter denying the averments made in the application and stated that entire averments of plaint have to be read to find out whether averments disclose cause of action and whether suit is barred by any law; that averments in the written statement as well as contentions of defendants cannot be considered for adjudicating of application under Order 7, Rule 11 of CPC and if the averments made in the plaint are taken to be correct as above and if it shows that suit is barred by any law or do not disclose cause of action then only application for rejection of plaint can be entertained; that cause of action and limitation are mixed question of fact and law and same cannot be decided at early stage and have to be decided only after full fledged trial and further application filed by the defendant is not maintainable and is liable to be dismissed.

7. The trial Court, after considering the oral and documentary evidence available on record, allowed the I.A.No.78 of 2022 on 06.01.2023, by observing as under:

(i) “Turning back to the case on hand. As stated supra, the suit is filed for declaration of title basing on a registered will deed and for recovery of possession. On reading the plaint averments, it disclose that late Shetkar Haugi Rao till his death was in possession of the suit property and later his wife, Shetkar Vittabai came in its possession. Before her death she executed a will deed, doc.No.24 of 2019 dated 01.10.2019 in favour of the respondents. According to the respondents only on 05.10.2019 and 18.10.2019, they