SHEORATHI CHOUDHARY Vs. RAM PARVESH CHOUDHARY

JUDGEMENT

(1.) Heard learned counsel Mr. Dinbandhu Singh for the petitioners and learned counsel Mr. Rang Nath Choubey, appearing for the Opposite Parties. This revision application has been filed by the defendant against the order dated 17th of January, 2011 passed by the learned Munsif-II, Vikramganj, Rohtas in Title Suit No. 35 of 1997 whereby the court below rejected the application, filed by the petitioner, for deciding the two issues as preliminary issues, and for rejecting the plaint under Order 7, Rule 11 CPC.

(2.) Learned counsel, appearing for the petitioner submitted that the suit has been filed by the plaintiff-respondent for declaring the sale deed of the year 1972 as executed by the plaintiff's mother, is void, illegal and not binding upon the plaintiff. Since the suit has been filed in the year 1997, apparently, the suit is barred by law of limitation because the plaintiff was born in the year 1963 and therefore, he attained the majority in the year 1980-81. The plaintiff has filed the suit within three years after attaining of majority. Secondly, learned counsel submitted that the notification has already been issued under Section 3 of the Bihar Consolidation of Holdings and Prevention of Fragmentation Act, 1956 and still there has been no de-notification under Section 26-A of the Consolidation Act and, therefore, the suit is barred. The learned court below wrongly held that the question of limitation is not pure question of law and so far Consolidation Act is concerned, the court below has said that the question/relief, claimed by the plaintiff, cannot be granted by the Consolidation Authority, and therefore, rejected the application and refused to decide the two issues as preliminary rejecting the application filed under Order 7, Rule 11 CPC.

(3.) Order 14, Rule 2(2) CPC provides that where/whether issues both of law and of fact arises in the same suit, and the Court is of opinion that the case or any part thereof may be disposed of on an issue of law only, it may try that issue first if that issue relates to--