CHETRAM & ORS Vs. DAVENDER & ORS

JUDGEMENT

(1.) Rfa No. 763/2010 and C.M. Appl. No. 2658/2011 (for directions)

(2.) The suit property is an area of 225 sq. yards situated in Khasra no. 48/62, Village Khayala, New Delhi-18. The case set up in the plaint is that the property was originally owned by Sh. Harbaksh and when he died intestate, the suit property was inherited by his two sons, namely Sh. Bhim Singh and Sh. Sarupa. The case in the plaint is that Sh. Bhim Singh became owner of the suit property of 225 sq. yards after division of the property with his brother Sh. Sarupa. The further case set up in the plaint is that the father of the parties Sh. Bhim Singh expired intestate and therefore his legal heirs being his six sons became co-owners and which sons are Sh. Jagan/appellant no. 3/ plaintiff no. 4, Sh. Hari Ram, Sh. Chet Ram/appellant no. 1/ plaintiff no. 1, Sh. Raghuber/appellant no. 2/ plaintiff no. 2, Sh. Ramesh/ respondent no. 5/ plaintiff no. 3 and Sh. Jeet/respondent no. 3/ defendant no. 3. The plaintiffs in the suit are Sh. Chet Ram, Sh. Raghuber, Sh. Ramesh and Sh. Jagan. The defendant no. 3 in the suit is the brother Sh. Jeet. As per the plaint, on the death of the father Sh. Bhim Singh the suit property was jointly mutated in the name of all the sons of Sh. Bhim Singh being the plaintiffs and the defendant, but one son Sh. Hari Ram died intestate in 2008 and without leaving behind any legal heirs hence the property vested in his name was mutated in all other brothers of Sh. Hari Ram. In the plaint which is filed on 07.12009 it is further pleaded that in the year 2000-01 the respondent no. 1 and 2/defendant nos. 1 and 2/strangers broke open the locks and entered into possession of the property and failed to vacate the suit property but instead told the appellants no. 1-3 and respondent no. 5/plaintiffs that they must settle their account with one brother Sh. Jeet/respondent no. 3/defendant no. 3. Since the suit property was not vacated by the respondent no. 1 and 2/defendants no. 1 and 2 hence the subject suit for possession, mesne profits and injunction was filed.

(3.) In the suit the defendants filed an application under Order 7 Rule 11 CPC for rejection of the plaint on the ground of limitation, and the said application has been allowed by the trial court in terms of the impugned judgment holding that the suit is barred under Article 58 of the Limitation Act, 1963, because the appellants and respondent no. 5/plaintiffs are deemed to know of the Sale Deed in favour of the respondent no. 1 and 2/defendant nos. 1 and 2 since the year 2000-01 and therefore the Sale Deed in favour of respondent no. 1 and 2/defendant nos. 1 and 2 of the year 2000-01 could not be challenged by the subject suit filed in December, 2009.