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2007 (10) TMI 693 - SUPREME COURTMaintainability of plaint - maintainability of the application questioned on the ground that once the court is seized of an application filed by him under Order VII Rule 11 CPC - suit filed within 12 years - Suit barred by limitation - land dispute - Identification of the property - scope of applicability of the Limitation Act vis-`-vis Order VII Rule 11 of the Code of Civil Procedure - HELD THAT:- The law of limitation relating to the suit for possession has undergone a drastic change. In terms of Articles 142 and 144 of the Limitation Act, 1908, it was obligatory on the part of the plaintiff to aver and plead that he not only has title over the property but also has been in possession of the same for a period of more than 12 years. However, if the plaintiff has filed the suit claiming title over the suit property in terms of Articles 64 and 65 of the Limitation Act, 1963, burden would be on the defendant to prove that he has acquired title by adverse possession. We have noticed that the defendant, inter alia, on the plea of identification of the suit land the deeds of sale, under which the plaintiff has claimed his title, claimed possession. The defendant did not accept that the plaintiff was in possession. An issue in this behalf is, therefore, required to be framed and the said question is, therefore, required to be gone into. Limitation would not commence unless there has been a clear and unequivocal threat to the right claimed by the plaintiff. In a situation of this nature, in our opinion, the application under Order VII Rule 11(d) was not maintainable. The contentions raised by the learned Counsel for the respondent may have to be gone into at a proper stage. Lest it may prejudice the contention of one party or the other at the trial, we resist from making any observations at this stage. Thus, the impugned judgment cannot be sustained. The same is, therefore, set aside. The appeal is allowed with costs.
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