IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) FRIDAY, THE TWENTY EIGHTH DAY OF JANUARY TWO THOUSAND AND ELEVEN :PRESENT: THE HON'BLE SRI JUSTICE B. SESHASAYANA REDDY CIVIL REVISION PETITION No.4412 of 2009 Between: Smt.Gaddamidi Chandrakala ..... PETITIONER AND Raghupuram Narasimha Reddy and others ..... RESPONDENTS ORDER: This revision is directed against the order dated 03-07-2009 passed in I.A.No.177 of 2009 in O.S.No.209 of 2008 on the file of the Senior Civil Judge at Mahaboobnagar, whereby and whereunder learned Senior Civil Judge dismissed the application filed by the second defendant in O.S.No.209 of 2008 under Order VII Rule 11 (a) and (d) r/w.151 of the Code of Civil Procedure, 1908. 2. The respondents 1 to 12 herein are the plaintiffs and whereas the petitioner is the second defendant in O.S.No.209 of 2008. The plaintiffs filed the suit seeking the following reliefs: a) To declare that the plaintiffs are the absolute owners of the land of Ac.5-11 gts., in Sy.No.159, which is contiguous to their land in Sy.No.175 on the North. b) For recovery of possession of the suit land in favour of the plaintiffs. c) For the ratification of entries in ROR and for recording the names of the plaintiffs as owners over the suit land. d) Costs of the suit may be awarded. e) All other consequential and ancillary reliefs that might be deemed fit and proper by this Hon’ble Court. 3. The second defendant filed I.A.No.177 of 2009 under Order VII Rule 11 (a) and (d) r/w.151 of the Code of Civil Procedure, 1908 to reject the plaint. In the affidavit filed in support of the petition it is stated that defendant No.2 dispossessed the father of the plaintiffs 1 to 5, 7 and 8, father, husband of 6th plaintiff and brother of 9, 10,11 and 12 from the suit land by virtue of injunction granted by the Junior Civil Judge, Shadnagar, only and it shows that the plaintiffs came to be dispossessed 15 or 16 years back. Hence, the suit is barred by limitation. 4. The plaintiffs filed counter resisting the application. The gist of litigation between the parties has been stated in paragraph No.3 of the counter-affidavit, which reads as hereunder: “With regard to para No.2, it is submitted that the petitioner has forgotten the facts that the cause of action arose when the Hon’ble High Court while passing orders in S.A.No.1139/2004, dated 30-08-2005 observed that there is dispute with regard to the boundaries is subsisting. The cause of action arose on 30-08-2005 for appointment of a Mandal Surveyor for fixing of boundaries. The said judgment was delivered by the Hon’ble High Court on 30- 08-2005. Pursuant to the judgment of the Hon’ble High Court, the plaintiffs approached the then Mandal Revenue Officer, now the Tahsildar i.e., D-4 and 5th respondent by way of application dated 10-01-2006 for marking and fixing of the boundaries. The Mandal Surveyor surveyed the land and gave a map showing the land occupied by the plaintiffs in Sy.No.159 along with S.No.175 as per Sale Deed dated 12-11-1974. As per the said Survey, the 2nd defendant/petitioner encroach the land of the plaintiffs without any right to an extent of Ac.5-00 guntas and 3rd defendant encroached Ac.0-11 guntas of land. The land under the sale deed bearing Doc.No.138 of 1985 dated 18.1.1985 is not one and the same land as purchased by the father of plaintiffs 1 to 5, 7 and 8 father, husband of 6th plaintiff and brother of 9, 10, 11 and 12 in the year 1974. The land in Sy.No.159 covers Ac.5-11 Gts situated at Kammadanam village, Farooqnagar mandal, Mahabubnagar district is adjacent to Sy.No.175 on Southern side and the map as surveyed by the Mandal Surveyor, Farooqnagar mandal, Mahabubnagar district.” 5. The learned Senior Civil Judge, on considering the material brought on record and on hearing the learned counsel appearing for the parties, proceeded to dismiss the application reserving liberty to the petitioner herein to raise the issue after placing on record the written statement. The said order is assailed in this revision. 6. Heard learned counsel appearing for the petitioner and learned counsel appearing for the respondents. 7. Learned counsel appearing for the petitioner submits that the defendant is not required to file written statement before making an application under Order VII Rule 11 (a)(d) r/w.151 of the Code of Civil Procedure and therefore, the order impugned in the revision is liable to be set aside. Reliance has been placed on the decision of Delhi High Court in ARJAN SINGH AND OTHERS v. UNION OF INDIA AND OTHERS[1], wherein it has been held that “Normally, a plaint has to be rejected not by taking evidence, or reading the written statement, but by finding out what is contained in the plaint itself. For purpose of seeing whether a plaint is within time or not every allegation of the plaint has to be assumed correct. If the plaint itself shows that the claim is barred by time, then the plaint can be rejected. However, if the real question of limitation is connected with the merits of the claim in the suit then it has to be tried along with the other issues.” 8. Learned counsel appearing for the respondents submits that the respondents pleaded in the plaint as to how cause of action has arisen for filing suit. Learned counsel refers the judgment passed in Second Appeal No.1139 of 2004 which arises out of judgment and decree dated 31-05-2004 passed in A.S.No.13 of 1997 on the file of the learned IV Additional District Judge (Fast Track Court), Mahabubnagar, wherein the findings recorded in the judgment dated 21-01-1997 in O.S.No.107 of 1989 on the file of the learned District Munsiff, Shadnagar, were reversed. 9. Learned counsel laid much emphasis on the observation made by the learned Single Judge of this Court while dismissing S.A.No.1139 of 2004 which reads as hereunder: “Before the trial Court, on behalf of the plaintiff, PWs.1 to 7 were examined and Exs.A1 to A18 were marked. On behalf of the defendants, DWs.1 to 3 were examined and Exs.B1 to B40 were marked. Exs.C1 to C4 were also marked. The trial Court, after appreciation of the entire evidence on record, dismissed the suit holding that the respondent-plaintiff was not in possession of the plaint schedule property. However, on appeal, the appellate Court held that in view of the oral evidence of P.W.4 coupled with documentary evidence in Exs.A2 and B1, the plaintiff is in possession of the property and, therefore, she is entitled for injunction as prayed for; thus, the suit was decreed. Ex.B1 is the purported sale deed executed in favour of the appellants by the vendor – P.W.4. It is an unstamped and unregistered document. However, P.W.4 admitted execution of Ex.B1 and thereafter, the same was impounded as required under the law. It is clear from Ex.B1 that no boundaries are mentioned therein; whereas Ex.A2 is a registered sale deed dated 18-1-1985 executed by P.W.4 himself in favour of the respondent-plaintiff, which specifically indicates the boundaries. Therefore, I am of the view that the appellate Court has not committed any error in coming to the conclusion that the respondent- plaintiff is in possession of the plaint schedule property and she is entitled for perpetual injunction as prayed for. The matter is in the nature of boundary dispute. There is no question of law muchless substantial question of law arises for consideration in this Second Appeal. In view of the above discussion, the Second Appeal is dismissed. However, it is left open to the parties to work out their remedies by way of appointment of a Surveyor for the purpose of fixing boundaries etc. There shall be no order as to costs.” 10. The respondents 1 to 12/plaintiffs have referred the earlier litigation and the out come of the Second Appeal preferred by them in paragraph Nos.7 and 8 of the plaint. Pursuant to the liberty given in the Second Appeal, they got the land measured and found that the defendants encroached the plaint schedule land. It is well settled law that the issue of limitation is a mixed question of fact and law, for which evidence is required to be adduced by both the parties. 11. The plaint averments are clear that they instituted suit consequent on the observation made by this Court in S.A.No.1139 of 2004. Such is the situation, the order impugned in this revision does not warrant interference in exercise of powers under Article 227 of the Constitution of India. 12. Accordingly, the Civil Revision Petition is dismissed. There shall be no order as to costs. _____________________________ B. SESHASAYANA REDDY, J January 28, 2011. PN THE HON'BLE SRI JUSTICE B. SESHASAYANA REDDY CIVIL REVISION PETITION No.4412 of 2009 January 28, 2011 [1] AIR 1987 DELHI 165