TaxTMI 
TaxTMI 
2007 (10) TMI 693
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....aid suit was said to have arisen in 1994 when the defendants allegedly trespassed over the suit property. Respondent on or about 8.8.2001 filed an application under Order VII Rule 11(d) of the Code of Civil Procedure praying for rejection of the plaint on the premise that the suit was barred by limitation, inter alia, stating: 2. I beg to submit that the Respondent/Plaintiff in the plaint paragraph 4 with respect to the question of limitation has averred that he had the knowledge of the mistake with regard to the boundaries in the sale deed only on 2.11.1998 for the purpose of satisfying the court to admit the plaint. 3. I beg to submit that the averments are made knowing to be false. The following admitted facts would clearly establish the same. (a) The plaintiff admits in paragraph 3 (3 and 3) that he had the defective title on 24.11.1974. He further contended that mistake was repeated again on 14.9.1979. Such mistakes even alter 2 decades has not been rectified by any instrument. The plaintiff lost his right long before to rectify the alleged mistake. Now, he was misused and abused this Hon'ble Court and filed the suit after the period of limitation. (b) The Responde....
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....that the boundaries of the property purchased by him under the sale deed dated 14.9.1979 were wrongly mentioned for a larger extent, as the mistake crept patent title deed dated 13.3.1964 and that the mistake come to his knowledge only on 2.11.1998. As held by the Supreme Court in Propet and Kotecha property v. S.RI State Association reported in 15(4) CTC 489 averments in the plaint alone would be looked into while considering an application for rejection of plaint U.O. 7 Rule 11 CPC and that the plea raised in the written statement are irrelevant at such stage. In the present case the plea of the plaintiff that he came to know about the mistake regarding the boundary description in the sale dated 14.9.1979 only on whether he had knowledge earlier is question of fact to be considered during the trial in the suit. As such the plaint on...is a mixed question of fact and law to be considered during the trial by casting the issue suitably. Hence the present petition for rejecting the plaint is balance to be dismissed. The point is answered accordingly. 5. Respondent preferred a civil revision petition thereagainst. By reason of the impugned order, a Division Bench of the High Court re....
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....tion which was raised before the learned Trial Judge was different from the question raised before the High Court. Before the learned Trial Judge, as noticed hereinbefore, the provisions of the Limitation Act were brought in with reference to the identification of the property. It was not contended that the suit was barred by limitation in terms of Article 58 of the Limitation Act, 1963. The High Court, therefore, in our opinion, ex facie committed an error in arriving on the aforementioned finding. The scope of applicability of the Limitation Act vis-`-vis Order VII Rule 11 of the Code of Civil Procedure has been considered in some recent decisions of this Court to which we may advert to. 10. In Popat and Kotecha Property v. State Bank of India Staff Association (2005)7SCC510 , this Court, inter alia, opined: Rule 11 of Order VII lays down an independent remedy made available to the defendant to challenge the maintainability of the suit itself, irrespective of his right to contest the same on merits. The law ostensibly does not contemplate at any stage when the objections can be raised, and also does not say in express terms about the filing of a written statement. Instead, the....
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....ether Order VII Rule 11(d) can be applied when a suit was filed on the premise that a suit is barred by limitation, this Court noticed: This case was argued at length on 30-8-2005. Counsel appearing for the appellant had relied upon a judgment of this Court in N.V. Srinivasa Murthy v. Mariyamma for the proposition that a plaint could be rejected if the suit is ex facie barred by limitation. As against this, counsel for the respondents relied upon a later judgment of this Court in Popat and Kotecha Property v. State Bank of India Staff Assn. in respect of the proposition that Order VII Rule 11(d) was not applicable in a case where a question has to be decided on the basis of fact that the suit was barred by limitation. The point as to whether the words 'barred by law' occurring in Order VII Rule 11(d) CPC would include the suit being 'barred by limitation' was not specifically dealt with in either of these two judgments, cited above. But this point has been specifically dealt with by the different High Courts in Mohan Lal Sukhadia University v. Priya Soloman, Khaja Quthubullah v. Govt. of A.P., Vedapalli Suryanarayana v. Poosarla Venkata Sanker Suryanarayana, Arjan....
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.... conclusion that he has been dispossessed. 15. The law of limitation relating to the suit for possession has undergone a drastic change. In terms of Articles 142 and 144 of the Limitation Act, 1908, it was obligatory on the part of the plaintiff to aver and plead that he not only has title over the property but also has been in possession of the same for a period of more than 12 years. However, if the plaintiff has filed the suit claiming title over the suit property in terms of Articles 64 and 65 of the Limitation Act, 1963, burden would be on the defendant to prove that he has acquired title by adverse possession. 16. In Md. Mohammad Ali (dead) by LRs. v. Jagdish Kalita and Ors. (2004)1SCC271 , it was held: By reason of the Limitation Act, 1963 the legal position as was obtaining under the old Act underwent a change. In a suit governed by Article 65 of the 1963 Limitation Act, the plaintiff will succeed if he proves his title and it would no longer be necessary for him to prove, unlike in a suit governed by Articles 142 and 144 of the Limitation Act, 1908, that he was in possession within 12 years preceding the filing of the suit. On the contrary, it would be for the defend....