HIGH COURT OF JUDICATURE FOR RAJASTHAN AT

JODHPUR

S.B. Civil Revision Petition No. 47/2021

1.

Salma Banu W/o Kamaluddin, Aged About 60 Years,

Sanganer, Tehsil And District Bhilwara

2.

Kamaluddin S/o Unknow, Aged About 63 Years, Sanganer,

Tehsil And District Bhilwara

----Petitioners

Versus

1.

Fakruddin Mewati S/o Madar Bux, Near Heli Chabutre,

Rawla Chowk, Sanganer Tehsil And District Bhilwara.

2.

Chanda D/o Madar Bux, Near Heli Chabutre, Rawla

Chowk, Sanganer Tehsil And District Bhilwara. Presently

Near Community Hall, Hussain Basty, Sanganer, Tehsil

And District Bhilwara

3.

Tehsildar, Bhilwara

4.

Inspector, Registration And Stamps Department, Bhilwara

----Respondents

For Petitioner(s)

:

Mr. Ramniwas Choudhary.

For Respondent(s)

:

HON'BLE MR. JUSTICE ARUN BHANSALI

Order

25/08/2021

This revision petition is directed against order dated

03.08.2021 passed by Civil Judge (West), Bhilwara, whereby, the

application filed by the petitioner under Order VII Rule 11 CPC has

been rejected.

The suit was filed by the plaintiffs seeking cancellation of

sale-deed dated 26.03.2003 and for permanent and mandatory

injection.

It was inter-alia claimed in the plaint that though the sale-

deed is of 26.03.2003, the plaintiffs became aware of the sale-

deed on 03.03.2021 on which date the cause of action arose to

them/petitioners.

(2 of 3)

[CR-47/2021]

On being served the plaintiffs filed application under Order

VII Rule 11 CPC inter-alia claiming that the suit was barred by

limitation, inasmuch as, the sale-deed was of the year 2003 and

the suit has been filed after 18 years and, therefore, the plaint

was liable to be rejected.

Reply to the application was filed disputing the averments

made in the application.

After hearing the parties, the trial court by its order

impugned came to the conclusion that issue of limitation is a

mixed question of law & fact and the same can only be decided

once the parties lead evidence in this regard and consequently

rejected the application.

It is submitted by learned counsel for the petitioners that the

plaint is on its face barred by limitation, inasmuch as, the

cancellation of the sale-deed is sought which was executed in the

year 2003 and the suit has been filed in 2021 i.e. after 18 years

and that the trial court was not justified in rejecting the

application.

Further submissions were made that the plaintiffs were

aware of the sale-deed, inasmuch as, the property is in possession

of the petitioners since the same was transferred to

them/petitioners in the year 2003 and as such, the determination

made by the trial court being faulty, the same deserves to be set-

aside.

I have considered the submissions made by counsel for the

petitioners and have perused the material available on record.

A bare persual of the plaint indicates that in para 9 and 10 of

the plaint, the cause of action has been indicated, wherein, it is

claimed that when the plaintiffs went to the land in question, they

(3 of 3)

[CR-47/2021]

were stopped from entering it and it was claimed by the

defendants that they were in possession of the land, based on

which, it was claimed that the sale-deed came to their notice on

03.03.2021 and the suit was filed on 09.03.2021.

It is well settled that for deciding an application under Order

VII Rule 11(d) CPC only the plaint averments are required to be

considered.

The averments made by the petitioners regarding the

plaintiff being aware of the sale-deed and that the defendants

were in possession of the land in question since 2003 has to be

pleaded in the written statement. Once the facts are required to

be pleaded in the written statement, the same necessarily means

that the plaint cannot be rejected under Order VII Rule 11 (d)

CPC.

In view thereof, the order passed by the trial court does not

call for any interference.

Learned counsel for the petitioners made sub