JANARDHAN HARIBHAU HEND Vs. JAIKUMAR SHALIGRAM CHANDAK

JUDGEMENT

(1.) HEARD . Admit. Heard forthwith with consent of the parties. Aggrieved by the rejection of the application under Order 7 Rule 11 of the Code of Civil Procedure in Special Civil Suit No. 11/2012, the present civil revision application is filed. The petitioners -original defendant nos. 2 and 3 claim that the suit is barred by limitation.

(2.) THE respondent no. 1plaintiff has claimed a right of preemption on the basis of the special contract at the time of partition of the properties between him and the respondent no.2. In the plaint, it was submitted that in breach of the said term of pre -emption, the respondent no. 2 has sold the suit plot to the present petitioners -defendant nos. 2 & 3 on 12.05.2009. The plaintiff had issued notice to the defendant no.1 i.e. Respondent no. 2 on 1.8.2011. No reply was given and therefore when inquiry was made by the respondent no. 1plaintiff it was found that the respondent no.2 has executed the aforesaid sale deed on 12.5.2009 in favour of the present petitioners and hence suit was filed on 27.5.2012.

(3.) THE learned trial court held that whether the suit is barred by limitation in the present case is the mixed question of law and facts and hence neither the plaint can be rejected under Order 7 Rule 11 of the Code of Civil Procedure nor it can be decided as a preliminary issue. Hence, the present revision application.