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2023 DIGILAW 586 (HP)

Mani Devi v. Kapoor Chand

2023-12-22

VIVEK SINGH THAKUR

body2023
JUDGMENT : VIVEK SINGH THAKUR, J. 1. Defendant/petitioner, invoking provisions of Section 115 of Code of Civil Procedure (in short ‘CPC’) has assailed order dated 21st March, 2022 passed by Civil Judge Ani, District Kullu HP, in an application filed under Order 7 Rule 11 of CPC, seeking rejection of plaint in Civil Suit No. 3 of 2021, titled Kapoor Chand and Others vs. Mani Devi whereby the said application has been dismissed. 2. Main ground for filing application under Order 7 Rule 11 CPC, as evident from copy of application placed on record, was that plaint was barred by law of limitation. 3. It is settled law that for considering the application under Order 7 Rule 11 CPC, the Court can look into only averments of the plaint and documents filed therewith, and in case this material establishes that there is ground for rejection of plaint, under Order 7 Rule 11 CPC, the plaint can be rejected but not otherwise if for arriving such conclusion some external material is necessary. 4. In present case, plaintiffs have filed a suit on 15th January, 2021 for declaration of their ownership and possession on suit land with declaration that mutation No. 5039 and Gift Deed allegedly executed by their father Gumat Ram in favour of defendant on 2.5.1994 registered at S. No. 175, on the basis of which mutation has been attested, is illegal, null and void and inoperative against the rights of plaintiffs. 5. In the plaint, it has been stated that Gift Deed was allegedly executed by Gumat, who expired in the year 2015, and plaintiffs were not aware about execution of Gift Deed as well as litigation between Gumat Ram and defendant Mani Devi, and they came to know about it after death of their father and filed an application for bringing them on record of the case in LPA No. 49 of 2012 and the said LPA was decided by the High Court. Copy of order passed in LPA has also been placed on record along with plaint as Annexure P-6. 6. Copy of order passed in LPA has also been placed on record along with plaint as Annexure P-6. 6. Perusal of order passed in LPA No. 49 of 2012, titled Gumat Ram vs. Mani Devi decided on 8.8.2019, depicts that in the said LPA issue related to attestation of mutation of land donated to Mani Devi by Gumat Ram was in dispute and the said litigation was revolving around the Gift Deed executed by Gumat Ram and claim of predecessor-in-interest of plaintiffs i.e. their father Gumat Ram as well as of petitioner was rejected in LPA by affirming the orders passed by the Financial Commissioner (Appeals) H.P. as well as learned Single Judge of High Court in CWP No. 638 of 2009 decided on 10th January, 2012. 7. From the aforesaid facts, it is apparent that even if the story of plaintiffs, as per plaint, is considered to be true then plaintiffs came to know about litigation, pending in High Court in LPA, in the year 2015 and they contested the appeal unsuccessfully which was dismissed in August 2019. In any case, if plaintiffs were not aware about Gift Deed before becoming party in LPA, they came to know about it in the year 2015-16. 8. Limitation for cancelling or setting aside the Gift Deed, under Limitation Act, 1963, is three years from the date when the facts entitling the plaintiffs first become known to them. In present case, from the plain reading of plaint and documents filed therewith, it is evidently clear that plaintiffs came to know about Gift Deed in the year 2015-16 but they did not assail the validity thereof within limitation period. Suit has been filed on 15th January, 2021 whereas limitation period has expired somewhere in the year 2018-19 and, therefore, suit is time barred. 9. The Trial Court, while rejecting the application filed by defendant has failed to notice the aforesaid facts, for revelation whereof, no external material was required, because from the pleadings in the plaint, it is apparent that suit is clearly barred by law of limitation. Therefore, the Trial Court while rejecting the application filed by defendant/petitioner has committed an error and thus order passed by the Trial Court is set aside and application filed by defendant/petitioner is allowed. Therefore, the Trial Court while rejecting the application filed by defendant/petitioner has committed an error and thus order passed by the Trial Court is set aside and application filed by defendant/petitioner is allowed. The suit filed by plaintiffs is not maintainable being barred by law of limitation and thus plaint is rejected under Order 7 Rule 11(d) CPC. 10. Revision petition is allowed in aforesaid terms including all pending miscellaneous applications, if any.