SHIVPRASAD Vs. DINESH KUMAR AND ORS.

JUDGEMENT

(1.) THIS revision petition is directed against the order dated 2/3/2015 passed by the trial court in civil suit No. 33A/2013, whereby application under Order VII Rule 11 CPC filed by the defendant has been dismissed.

(2.) FACTS relevant for disposal of this revision petition are to the effect that plaintiffs filed a suit for declaration and permanent injunction inter alia contending that vide registered sale deed dated 31/5/1993 the suit land was transferred in the name of their father, however, in the sale deed while describing the land instead of survey no.1802/2, survey no.1802/3 has been mentioned, however, the suit land is in possession of the plaintiffs. Therefore, for correction of survey number the plaintiffs had requested the defendants. Defendants denied to carry out correction in the sale deed on 20/3/2013. That gave rise to cause of action to the plaintiffs, who are the successors of the original vendee -Purshottam, to file the instant suit.

(3.) PLAINTIFFS filed reply to the application and denied that plaintiffs have no right to file the instant suit. It is also denied that the suit is barred by time. It is submitted that cause of action to file aforesaid suit had arisen on 20/3/2013 when defendants denied to carry out correction in the sale deed, therefore, the suit is well within time under Article 58 of the Limitation Act. It is further submitted that plaintiffs have not filed the suit for seeking declaring the sale deed as null and void or cancellation thereof, instead for correction, therefore, the suit not being for cancellation of sale deed, shall not be hit by Article 59 of the Limitation Act, as alleged. That apart, it is further submitted that there is no dispute that the sale deed was executed by defendant no.1 upon receipt of consideration. As such, fact of execution of sale deed is not denied. Further, as regards earlier suit, i.e. civil suit No. 10A/2002, it was submitted that the earlier suit was in fact and in effect filed against defendant no.1 therein i.e. Nagarpalika Ambah for declaration and possession with further relief of injuncting the defendants not to carry out construction over the land of the ownership of plaintiffs. Therefore, the relief of the nature pleaded in the suit was claimed against the Nagar Palika, as per para 6 of the plaint. As such, the aforesaid suit was entirely for a different purpose and since by efflux of time construction was completed, therefore, the suit was disposed of.