(1.) The present revision petition has been filed under Article 227 of the Constitution of India for setting aside the impugned order dated 20.11.2015 (Annexure P-3) passed by Civil Judge (Junior Division), Mewat, vide which the application filed by the petitioner under Order 7 Rule 11 for rejection of the plaint has been dismissed.
(2.) Briefly, the facts of the case as made out in the present petition, are that respondents No. 1 to 7-plaintiffs filed a suit for declaration with consequential relief of permanent injunction claiming themselves to be the co-owner of the suit property alleging that Shiv Charan @ Bhajan Lal was owner in possession of the suit property, who shifted to village Nand Gaon and the land in dispute was given to predecessors of respondent Nos. 8 to 39 to irrigate the same. It was further alleged that the predecessors, in interest of respondents No. 8 to 39, filed a suit titled as Shiv Charan v. Shyam Lal, which was got compromised. Respondents No. 8 to 39 claimed themselves to be the owner in possession of the suit property by way of adverse possession and the suit filed by Shiv Charan was dismissed vide judgment and decree dated 28.11967. Thereafter mutation was sanctioned in favour of respondents No. 8 to 39. The petitioner purchased a share from some of the co-owners vide sale deed dated 14.7.2008 for a valuable consideration of Rs. 80 lacs and filed an application under Order 7 Rule 11 CPC for rejection of the plaint inter alia contending that respondents No.1 to 7-plaintiffs were claiming inheritance of Shiv Charan @ Bhajan Lal and challenging the mutation, which was sanctioned on 14.1970 on the basis of judgment and decree dated 28.11967, so the present suit was hopelessly time barred and the same was filed without paying ad valorem Court fee on the sale consideration of Rs. 80 lacs. It was also averred that no cause of action had arisen against the petitioner. Said application was contested by respondents No.1 to 7-plaintiffs and ultimately it was dismissed vide order dated 20.11.2015, which is subject matter of challenge in the present petition.
(3.) Learned counsel for the petitioner contends that while dismissing application the learned trial Court has not appreciated the fact that the respondents No.1 to 7-plaintiffs are claiming the rights of Shiv Charan @ Bhajan Lal, who had transferred the land vide judgment and decree dated 28.12.1967 as since then the defendants are owner in possession of the same. Learned counsel further contends that Shiv Charan @ Bhajan Lal died on 25.11.1984 and the suit was filed by respondents No.1 to 7-plaintiffs in the year 2013 i.e. after 45 years from the date of decree and after 28 years from the date of death of their predecessor. Learned counsel also contends that the suit cannot be said to be filed within the period of limitation and as such the same was barred by limitation. It is also the argument of learned counsel that respondents No.1 to 7-plaintiffs have impleaded the petitioner as one of the defendants but did not challenge the sale deed vide which the petitioner purchased the suit property. As per provisions of Order 7 Rule 11 CPC, the plaint should have been rejected as it does not disclose any cause of action. Learned trial Court while disposing of the application has wrongly held that the issue of limitation is a mixed question of law and fact and the same can be decided by leading evidence only. Learned counsel also contends that the observations made by the trial Court that respondents No.1 to 7-plaintiffs were not required to pay ad valorem court fee on sale consideration is not sustainable, as respondents No.1 to 7-plaintiffs are claiming their right being successor of Shiv Charan @ Bhajan Lal. The petitioner who had purchased the suit property for a consideration of Rs. 80 lacs, ad valorem court fee has to be paid by respondents No.1 to 7-plaintiffs. At the end, learned counsel for the petitioner submits that the suit filed by respondents No.1 to 7-plaintiffs is not maintainable as they have not claimed possession of the suit property and the suit for declaration without seeking possession is not maintainable.