(1.) Heard Sri Alok Kumar Yadav, learned counsel for the appellants and Sri Nipun Singh, learned counsel for the respondents.
(2.) This is defendants' second appeal filed under Sec. 100 of Code of Civil Procedure, 1908 (hereinafter referred to as ''C.P.C.') against judgment and order dtd. 28/4/2022 passed by Additional District Judge, Court No. 3, Gautam Budh Nagar in Civil Appeal No. 3 of 2020, setting aside the order of trial court dtd. 24/12/2019 passed in Original Suit No. 88 of 2018 allowing the application under Order 7 Rule 11(d) of C.P.C. and rejecting the plaint of the plaintiffs-respondents.
(3.) Facts in nutshell, are that plaintiffs, Ratan Lal and Rewati were sons of Itwari Lal and had the third brother named Kirori. Kirori had died earlier. He had one son, Dalu who was issue-less, and had three real sisters, while had one step sister, Rampyari. The three sisters of Dalu had predeceased. According to plaint averment, Dalu died on 2/2/1981, while a Will was said to have been prepared on 28/1/1982 which was registered before the Sub-registrar, Khurja, District- Bulandshahar on 11/2/1982 bequeathing the agricultural land in favour of Rampyari. Rampyari before her death had executed a Will in favour of defendants-appellants on 30/10/2015. The plaintiffs-respondents were in possession over the property and they came to know about the said fact on 11/12/2017 and 27/5/2018, thus, a suit for cancellation of the Will dtd. 28/1/1982 registered on 11/2/1982 was filed being Original Suit No. 88 of 2018. The said suit was contested by defendants-appellants and a written statement was filed on 16/10/2018 alleging that Dalu had died on 20/9/1984. An application under Order 7 Rule 11(d) C.P.C. was filed on 16/10/2018 along with an affidavit being Paper No. 14 (Ga)(2) for dismissing the plaint as the suit being barred by limitation. The trial court on 24/12/2019 allowed the application filed under Order 7 Rule 11(d) of the appellants and dismissed the suit. Against the said judgment, Civil Appeal No. 3 of 2020 was filed before Additional District Judge, Court No. 3, Gautam Budh Nagar and the court below framed following point of determination:-