TMI Blog2007 (10) TMI 693X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. - S.B. Sinha and H.S. Bedi, JJ. For the Appellant : K.K. Mani, R. Thiagarajan, C.K.R. Levin Sekar and Mayur R. Shah, Advs For the Respondents : K.S. Mahadevan, Rajesh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lication in IA No. 805 of 1994 on 8.4.1994 to vacate the interim injunction granted in IA No. 604 of 1994 filed by the Respondent/Plaintiff. We have clearly pointed out that the main issue was the identification of the property. Hence the issue was decided in the interim application by the learned district Munsif, Tambaram on 27.6.1994. The learned District Munsif, Tambaram gave a clear findings that the Respondent/Plaintiff has to identify the property. (c) The Respondent plaintiff had clear knowledge of the mistake with regard to the boundaries not only on 8.4.1994 but also on 27.6.1994. (d) Therefore, the suit reliefs are barred by limitation. 3. In the counter affidavit filed on behalf of the petitioner, it was stated: This respondent further submits the points for rejection of the plaint are untenable. This respondent never admits that he had defective title in any of the paragraphs much less in para 3 of the plaint. It is stated that the description with regard to boundaries is only a mistake. This respondent submits that Order VII Rule 11(d) is not applicable to the facts of this case. This suit is filed for declaration and for permanent injunction, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... injunction and in the alternative for recovery of possession. Article 58 of the Limitation Act provides for three years as the limitation period to initiate proceedings from the date of cause of action, whereas Article 65 of the Act prescribes for twelve years for a suit filed for possession of immovable property or any interest therein based on title. The earlier suit filed by the petitioners in OS No. 502 of 1997 for permanent injunction has been decreed as against the respondent herein and it is only the revision petitioners are in continuous possession. The respondent filed the present suit mainly for declaring his title to the suit property. Thus, only Article 58 of the Limitation Act only applicable and not Article 65 of the Act. Admittedly, the suit is filed beyond the period of 3 years as contended by the learned Counsel for the petitioners and, therefore, the plaint itself is liable to be rejected. 6. Order VII Rule 11(d) of the Code of Civil Procedure reads as under: 11. Rejection of plaint.--The plaint shall be rejected in the following cases: (a) to (c) ... (d) where the suit appears from the statement in the plaint to be barred by any law; (e) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er Rule 11 does not preclude the plaintiffs from presenting a fresh plaint in terms of Rule 13. It was further opined: When the averments in the plaint are considered in the background of the principles set out in Sopan Sukhdeo case the inevitable conclusion is that the Division Bench was not right in holding that Order VII Rule 11 CPC was applicable to the facts of the case. Diverse claims were made and the Division Bench was wrong in proceeding with the assumption that only the non-execution of lease deed was the basic issue. Even if it is accepted that the other claims were relatable to it they have independent existence. Whether the collection of amounts by the respondent was for a period beyond 51 years needs evidence to be adduced. It is not a case where the suit from statement in the plaint can be said to be barred by law. The statement in the plaint without addition or subtraction must show that it is barred by any law to attract application of Order VII Rule 11. This is not so in the present case. 11. However, we may notice that another Division Bench of this Court, in Balasaria Construction (P) Ltd. v. Hanuman Seva Trust and Ors. (2006) 5 SCC 658, stated th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ontrary view has been taken in Jugolinija Rajia Jugoslavija v. Fab Leathers Ltd., National Insurance Co. Ltd. v. Navrom Constantza , J. Patel Co. v. National Federation of Industrial Coop. Ltd. and State Bank of India Staff Assn. v. Popat Kotecha Property. The last judgment was the subject-matter of challenge in Popat and Kotecha Property v. State Bank of India Staff Assn. This Court set aside the judgment and held in para 25 as under: (SCC p. 517) 25. When the averments in the plaint are considered in the background of the principles set out in Sopan Sukhdeo case the inevitable conclusion is that the Division Bench was not right in holding that Order VII Rule 11 CPC was applicable to the facts of the case. Diverse claims were made and the Division Bench was wrong in proceeding with the assumption that only the non-execution of lease deed was the basic issue. Even if it is accepted that the other claims were relatable to it they have independent existence. Whether the collection of amounts by the respondent was for a period beyond 51 years needs evidence to be adduced. It is not a case where the suit from statement in the plaint can be said to be barred by law. The stateme ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... v. Ambedkar Educational Society Ors. 2007 : AIR2007SC2191 and Bakhtiyar Hussai (dead) through LRs. v. Hafiz Khan and Ors. [CA Nos. 497-498/01 decided on 24.09.2007]}. 17. In S.M. Karim (supra), this Court was considering a question of Benami as also adverse possession. In the aforementioned context, it was opined: Adverse possession must be adequate in continuity, in publicity and extent and a plea is required at the least to show when possession becomes adverse so that the starting point of limitation against the party affected can be found. There is no evidence here when possession became adverse, if it at all did, and a mere suggestion in the relief clause that there was an uninterrupted possession for several 12 years or that the plaintiff had acquired an absolute title was not enough to raise such a plea. Long possession is not necessarily adverse possession and the prayer clause is not a substitute for a plea. The cited cases need hardly be considered, because each case must be determined upon the allegations in the plaint in that case. It is sufficient to point out that in Bishun Dayal v. , Kesho Prasad and Anr. the Judicial Committee did not accept an alter ..... X X X X Extracts X X X X X X X X Extracts X X X X
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