9911796707
TMI Blog2022 (3) TMI 1544X X X X Extracts X X X X X X X X Extracts X X X X ..... appeal. 2. The facts leading to the present appeal in nutshell are as under: 2.1 That the Respondents herein - original Plaintiffs had instituted a Title Suit No. 166 of 2010 against the Respondents herein (original Defendants) in the Court of Civil Judge, Sr. Division, Sealdah. The Plaintiffs in the suit prayed for the following reliefs: a) For declaration of right, title interest in the suit property and for confirmation of Plaintiff's possession as part performance of contract dated 28.4.1995 as provided Under Section 53A of the T.P. Act. aa) for enforcement of the agreement dated 28.4.1995 directing the Principal Defendant to execute and register Deed of conveyance in favour of the Plaintiffs; b) For a decree for permanent order of injunction restraining the aforesaid Defendant and his men and agent from causing any interference and/or any obstruction to the peaceful enjoyment and possession of the suit property and further restraining the Defendant from making any attempt to dispossess the Plaintiffs forcefully and illegally from the suit property; c) For temporary injunction with ad-interim Rule on similar effect in terms of prayer (b); xxxxxxxxxx 2.2 Havi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o transfer the property by a third party. It is submitted that as such in the facts and circumstances of the case, it can be said that the issue with respect to limitation is a mixed question of law and facts and therefore, the High Court ought not to have rejected the plaint on the ground that it is barred by limitation. 3.2. It is further submitted that the High Court has not at all properly appreciated the fact that the Plaintiffs claimed the relief in the suit invoking Section 53A of the Transfer of Property Act and also prayed for the relief of permanent injunction. It is urged that whether the Plaintiffs would succeed in getting the relief/reliefs Under Section 53A of the Transfer of Property Act would have to be considered at the time of trial. It is submitted that however, it cannot be said that a suit for declaration Under Section 53A of the Transfer of Property Act would not be maintainable at all. 3.3. Making above submissions and relying upon the decision of this Court in the case of Ram Prakash Gupta v. Rajiv Kumar Gupta and Ors., (2007) 10 SCC 59, it is vehemently submitted that in the present case, the High Court has exceeded its jurisdiction to reject the plaint U ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of limitation. At this stage what is required to be considered is the averments in the plaint. For the aforesaid purpose, the Court has to consider and read the averments in the plaint as a whole. As observed and held by this Court in the case of Ram Prakash Gupta (supra), rejection of a plaint Under Order VII Rule 11(d) Code of Civil Procedure by reading only few lines and passages and ignoring the other relevant parts of the plaint is impermissible. In the said decision, in paragraph 21, it is observed and held as under: 21. As observed earlier, before passing an order in an application filed for rejection of the plaint Under Order 7 Rule 11(d), it is but proper to verify the entire plaint averments. The abovementioned materials clearly show that the decree passed in Suit No. 183 of 1974 came to the knowledge of the Plaintiff in the year 1986, when Suit No. 424 of 1989 titled Assema Architect v. Ram Prakash was filed in which a copy of the earlier decree was placed on record and thereafter he took steps at the earliest and filed the suit for declaration and in the alternative for possession. It is not in dispute that as per Article 59 of the Limitation Act, 1963, a suit ought t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion of this Ld. Court. 7.3. In the present case, while holding that the suit is barred by limitation, the High Court has considered only the averments made in paragraph 4 and has not considered the entire plaint averments. 7.4. While rejecting the plaint, the High Court has also observed and held that the suit for a declaration simpliciter Under Section 53A of the Transfer of Property Act against the original owner would not be maintainable and for that reliance is placed upon the decision of this Court in the case of Delhi Motor Company (supra). However, it is required to be noted that even the Plaintiffs have also prayed for the decree for a permanent injunction claiming to be in possession and the declaration and permanent injunction as such invoking Section 53A of the Transfer of Property Act. When the suit is for a decree of permanent injunction and it is averred that the Plaintiffs are in possession of the suit property pursuant to the agreement and thereafter, they have developed the land and that they are in continuous possession since more than twelve years and they are also paying taxes to the Corporation, the cause of action can be said to have arisen on the date on w ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
