The court emphasized the need for evidence and rejected the objection based on the requirement for consideration at the trial stage.

Heard Mr. Shivaji Singh, learned counsel for the petitioner and Mr. Siddheshwari Prasad Singh, learned Senior counsel for the petitioner.

2. This civil revision application is directed against the order dated 28.8.2006 passed by learned Munsif, Danapur in Title Suit No. 19 of 2003 whereby the learned trial Court while considering the objection raised by the petitioner who is the defendant in the Court below under Order 7 Rule 11 of the Code of Civil Procedure read with Order 14 Rule 2 thereof, has been pleased to reject the same inter alia on grounds that the matter requires consideration at the stage of trial.

3. The suit in question giving rise to Title Suit No. 19 of 2003 has been filed by the plaintiff-sole opposite party for the following reliefs:

“11. That the plaintiff prays for the following reliefs;

(a) That on adjudication of the facts stated above it be declared that defendant acquired no title and possession on the basis of the said showy deed of gift dated 6.3.1981 and plaintiff has got title and possession in the said property.

(b) That it be declared that said showy deed of gift dated 6.3.81 is not binding on the plaintiff.

(c) That the possession of the plaintiff be confirmed over the suit property and in case if he be found out of its possession, a decree for recovery of possession be passed in favour of the plaintiff.

(d) That the defendant be restrained by an order of adinterim injunction from transferring or encumbering or interfering with the possession of the plaintiff over the suit land during the pendency of the suit.

(e) That cost of the suit be awarded to the plaintiff against the defendant.

(f) Any other relief or reliefs which deems fit and proper be awarded to the plaintiff and against the defendant.”

4. The plaintiff happens to be the own father of the petitioner.

5. It is the case of the plaintiff that for the purpose of securing loan, the deed of gift in question dated 6.3.1981 was executed along with some others in favour of the defendant but in effect no title was to pass on the said defendant and which is manifest from the recitals of the deed. It is further the case of the plaintiff that for the first time he became aware of the fact that this defendant was trying to take benefit of the gift deed, is when he received the copy of the plaint in Title Suit No. 203 of 2001 filed by this defendant. It is the case of the plaintiff that following the receipt of notice in the said partition suit he became aware of the design of the defendant and he has chosen to file the suit in question.

6. Mr. Singh, learned counsel for the petitioner has submitted that in view of the provisions underlying Article 59 of the Limitation Act, the suit at best could have been filed within three years of the execution thereof and not thereafter. It is further the case of the defendant-petitioner as advanced by Mr. Singh, that the explanation given by the plaintiff in moving the Court after receipt of the plaint in Title Suit No. 203 of 2001 cannot out weigh the limitation and the suit is hopelessly barred, and the trial Court should have held as such. Mr. Singh in support of his submission has relied upon the following judgments of the Supreme Court:

(a) (2005) 5 SCC 548 [:2006(1) PLJR (SC)1]

(b) (1977) 4 SCC 467.

8. It is on the strength of the aforesaid judgments that it has been argued that continuation of the proceedings would be an undue harassment to the defendant, who is admittedly now the title holder of the property in question by virtue of the gift deed.

9. The position has been contested by Mr. Siddheshwar Narayan Singh, learned Senior counsel for the plaintiff- opposite party.

10. I have heard learned counsel for the parties and have perused the materials on record.

11. There is no gainsaying that going by the date of the gift deed the plaintiff apparently seems to have moved after considerable delay and going strictly by the provisions underlying Article 59 the suit ought to be dismissed as hopeles