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IN SUPREME COURT OF INDIA Page 1 of 7

CASE NO.:
Appeal (civil) 4803 of 2007

PETITIONER:
C. Natrajan

RESPONDENT:
Ashim Bai & Anr

DATE OF JUDGMENT: 11/10/2007

BENCH:
S.B. Sinha & Harjit Singh Bedi

JUDGMENT:
J U D G M E N T
(Arising out of SLP (C) No.18129 of 2006)

S.B. Sinha, J.

1. Leave granted.

Appellant herein filed a suit against the respondents claiming, inter

alia, for the following reliefs :
\023(a) For declaration of plaintiff\022s title to the suit
property;
(b) For consequential injunction, restraining the
defendants, their men, agents, servants, etc.
from in any manner interfering with the
plaintiff\022s peaceful possession and
enjoyment of the suit property.
(c) Alternatively, if for any reason this
Honourable court comes to a conclusion that
the plaintiff is out of possession, for
recovery of vacant possession of the suit
property;
(d) Directing the defendant to pay the cost of
this suit.\024

2. The said suit was filed in the year 2001. Cause of action of the said
suit was said to have arisen in 1994 when the defendants allegedly
trespassed over the suit property. Respondent on or about 8.8.2001 filed an
application under Order VII Rule 11(d) of the Code of Civil Procedure
praying for rejection of the plaint on the premise that the suit was barred by
limitation, inter alia, stating :
\0232. I beg to submit that the Respondent/Plaintiff
in the plaint paragraph 4 with respect to the
question of limitation has averred that he had the
knowledge of the mistake with regard to the
boundaries in the sale deed only on 2.11.1998 for
the purpose of satisfying the court to admit the
plaint.
3. I beg to submit that the averments are made
knowing to be false. The following admitted facts
would clearly establish the same.
(a) The plaintiff admits in paragraph 3 (3 and 3)
that he had the defective title on 24.11.1974.
He further contended that mistake was
repeated again on 14.9.1979. Such mistakes
even alter 2 decades has not been rectified
by any instrument. The plaintiff lost his
right long before to rectify the alleged
mistake. Now, he was misused and abused
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this Hon\022ble Court and filed the suit after the
period of limitation.
(b) The Respondent/Plaintiff filed the suit
describing the suit property in accordance to
his sale deed dated 14.9.1979 before the
District Munsif of Tambaram in OS No.501
of 1994 on 28.3.1994. The said suit was
filed for the relief of permanent injunction
based on the sale deed and possession of the
sale property alleging that he was in
possession of the sale property. We have
filed an application 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.\024

3. In the counter affidavit filed on behalf of the petitioner, it was stated :

\023This 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, alternatively for recovery of
possession. The suit is filed within 12 years.
Moreover the suit for declaration and injunction is
also been filed within 3 years from the date of
judgment passed in O.S. No.501/1997 and O.S.
No.502/1997 on the file of District Munsif Judicial
Magistrate Alandur. Hence, this suit is not barred
by any law.\024

4. The learned Principal Subordinate Judge, Chengalpet, by reason of its

judgment and order dated 31.3.2006 rejected the said application of the
respondent, opining :
\023The suit property as shown in the schedule to OS
No.502 of 2001 is found to be same as described in
the sale deed dated 149/1979 in favour of the
plaintiff and its patent documents of title. Now the
plaintiff has described and suit property in the
schedule to the present plaint as per present lie on
the ground on the averments that the boundaries of
the property purchased by him under the sale deed
dated 14.9.1979 were wrongly mentioned for a
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larger extent, as the mistake crept patent title deed
dated 13.3.1964 and that the mistake come to his
knowledge only on 2.11.1998. As held by the
Supreme Court in Propet and Kotecha property
VS.S.RI State Association reported in 15(4) CTC
489 averments in the plaint alone would be looked
into while considering an application for rejection
of plaint U.O. 7 Rule 11 CPC and that the plea
raised in the written statement are irrelevant at
such stage. In the present case the plea of the
plaintiff that he came to know about the mistake
regarding the boundary description in the sale
dated 14.9.1979 only on whether he had
knowledge earlier is question of fact to be
considered during the trial in the suit. As such the
plaint on .. is a mixed question of fact and law to
be considered during the trial by casting the issue
suitably. Hence the present petition for rejecting
the plaint is balance to be dismissed. The point is
answered accordingly.\024

5. Respondent preferred a civil revision petition thereagainst. By reason

of the impugned order, a Division Bench of the High Court reversed the said
judgment of the Trial Court opining that the period of limitation, as per
Article 58 of the Limitation Act, expired in 1997 itself, stating :
\023A perusal of the typed set of papers would show
that the present suit has been filed by the
respondent/plaintiff for the relief of declaration of
title of the suit property and consequently
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.\024

6. Order VII Rule 11(d) of the Code of Civil Procedure reads as under :

\02311.Rejection of plaint.\027The 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) to (f) ...\024

7. An application for rejection of the plaint can be filed if the allegations

made in the plaint even if given face value and taken to be correct in their
entirety appear to be barred by any law. The question as to whether a suit is
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barred by limitation or not would, therefore, depend upon the facts and
circumstances of each case. For the said purpose, only the averments made
in the plaint are relevant. At this stage, the court would not be entitled to
consider the case of the defence. {See [Popat and Kotecha Property v. State
Bank of India Staff Association [(2005) 7 SCC 510]}.
8. Applicability of one or the other provision of the Limitation Act per se
cannot be decisive for the purpose of determining the question as to whether
the suit is barred under one or the other article contained in the Schedule
appended to the Limitation Act.
9. The question which was raised before the learned Trial Judge was
different from the question raised before the High Court. Before the learned
Trial Judge, as noticed hereinbefore, the provisions of the Limitation Act
were brought in with reference to the identification of the property. It was
not contended that the suit was barred by limitation in terms of Article 58 of
the Limitation Act, 1963. The High Court, therefore, in our opinion, ex
facie committed an error in arriving on the aforementioned finding. The
scope of applicability of the Limitation Act vis-‘-vis Order VII Rule 11 of
the Code of Civil Procedure has been considered in some recent decisions of
this Court to which we may advert to.
10. In Popat and Kotecha Property v. State Bank of India Staff
Association [(2005) 7 SCC 510], this Court, inter alia, opined:
\023Rule 11 of Order VII lays down an independent
remedy made available to the defendant to
challenge the maintainability of the suit itself,
irrespective of his right to contest the same on
merits. The law ostensibly does not contemplate at
any stage when the objections can be raised, and
also does not say in express terms about the filing
of a written statement. Instead, the word \023shall\024 is
used clearly implying thereby that it casts a duty
on the court to perform its obligations in rejecting
the plaint when the same is hit by any of the
infirmities provided in the four clauses of Rule 11,
even without intervention of the defendant. In any
event, rejection of the plaint under Rule 11 does
not preclude the plaintiffs from presenting a fresh
plaint in terms of Rule 13.\024

It was further opined :

\023When 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.\024

11. However, we may notice that another Division Bench of this Court, in
Balasaria Construction (P) Ltd. v. Hanuman Seva Trust & Ors. [(2006) 5
SCC 658], stated the law thus :
\023After hearing counsel for the parties, going
through the plaint, application under Order VII
Rule 11(d) CPC and the judgments of the trial
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court and the High Court, we are of the opinion
that the present suit could not be dismissed as
barred by limitation without proper pleadings,
framing of an issue of limitation and taking of
evidence. Question of limitation is a mixed
question of law and fact. Ex facie in the present
case on the reading of the plaint it cannot be held
that the suit is barred by time. The findings
recorded by the High Court touching upon the
merits of the dispute are set aside but the
conclusion arrived at by the High Court is
affirmed. We agree with the view taken by the trial
court that a plaint cannot be rejected under Order
VII Rule 11(d) of the Code of Civil Procedure.\024

12. In the said decision, it may be placed on record, on the question as to

whether Order VII Rule 11(d) can be applied when a suit was filed on the
premise that a suit is barred by limitation, this Court noticed :
\023This case was argued at length on 30-8-2005.
Counsel appearing for the appellant had relied
upon a judgment of this Court in N.V. Srinivasa
Murthy v. Mariyamma for the proposition that a
plaint could be rejected if the suit is ex facie barred
by limitation. As against this, counsel for the
respondents relied upon a later judgment of this
Court in Popat and Kotecha Property v. State
Bank of India Staff Assn. in respect of the
proposition that Order VII Rule 11(d) was not
applicable in a case where a question has to be
decided on the basis of fact that the suit was barred
by limitation. The point as to whether the words
\023barred by law\024 occurring in Order VII Rule 11(d)
CPC would include the suit being \023barred by
limitation\024 was not specifically dealt with in either
of these two judgments, cited above. But this point
has been specifically dealt with by the different
High Courts in Mohan Lal Sukhadia University v.
Priya Soloman, Khaja Quthubullah v. Govt. of
A.P., Vedapalli Suryanarayana v. Poosarla
Venkata Sanker Suryanarayana, Arjan Singh v.
Union of India wherein it has been held that the
plaint under Order VII Rule 11(d) cannot be
rejected on the ground that it is barred by
limitation. According to these judgments the suit
has to be barred by a provision of law to come
within the meaning of Order VII Rule 11 CPC. A
contrary 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)

\02325 . 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
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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.\024

13. If the plaintiff is to be granted a relief of recovery of possession, the

suit could be filed within a period of 12 years. It is one thing to say that
whether such a relief can be granted or not after the evidences are led by the
parties but it is another thing to say that the plaint is to be rejected on the
ground that the same is barred by any law. In the suit has been filed for
possession, as a consequence of declaration of the plaintiff\022s title, Article 58
will have no application.
14. Learned counsel appearing on behalf of the respondent, however,
placed strong reliance upon a decision of this Court in S.M. Karim v. Mst.
Bibi Sakina [(1964) 6 SCR 780] to contend that alternative plea cannot be
considered for arriving at a conclusion that he has been dispossessed.
15. 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.
16. In Md. Mohammad Ali (dead) by LRs. v. Jagdish Kalita and Ors.
[(2004) 1 SCC 271], it was held :
\023By reason of the Limitation Act, 1963 the legal
position as was obtaining under the old Act
underwent a change. In a suit governed by Article
65 of the 1963 Limitation Act, the plaintiff will
succeed if he proves his title and it would no
longer be necessary for him to prove, unlike in a
suit governed by Articles 142 and 144 of the
Limitation Act, 1908, that he was in possession
within 12 years preceding the filing of the suit. On
the contrary, it would be for the defendant so to
prove if he wants to defeat the plaintiff\022s claim to
establish his title by adverse possession.\024

{See also P.T. Munichikkanna Reddy & Ors. v. Revamma & Ors.
[(2007) 6 SCC 29]; Binapani Paul v. Pratima Ghosh & Ors. [(2007) 6 SCC
100]; Kamakshi Builders v. Ambedkar Educational Society & Ors. [AIR
2007 SC 2191] and Bakhtiyar Hussai (dead) throuth LRs v. Hafiz Khan &
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 :
\023Adverse 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
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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 another (A.I.R. 1940
P.C. 202), the Judicial Committee did not accept
an alternative case based on possession after
purchase without a proper plea.\024

{See also Prem Lala Nahata & Anr. v. Chandi Prasad Sikaria [(2007)
2 SCC 551]}.
Such a question does not arise for our consideration herein.
18. We have noticed hereinbefore that the defendant, inter alia, on the
plea of identification of the suit land vis-‘-vis 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.
19. For the reasons mentioned above, the impugned judgment cannot be
sustained. The same is, therefore, set aside. The appeal is allowed with
costs. Counsel\022s fee assessed at Rs.25,000/- (twenty five thousand).