1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD SECOND APPEAL NO. 810 OF 2009 Ambubai Vishwanathrao Pangudwale (Gawali), Age 71 yrs., Occu. Nil, R/o. Papnas Galli (Jawahar Galli), Tuljapur, Tq. Tuljapur, Dist. Osmanabad. ....Appellant. Versus 1. Rajaram s/o. Tukaram Jangawali, Age 71 yrs., Occu. Business, R/o. Mohammad Bidi Karkhana, Somwar Peth, Solapur, Tq. & Dist. Solapur. 2. Somaji s/o. Tukaram Jangawali, Age 51 yrs., Occu. Business, R/o. Mohammad Bidi Karkhana, Somwar Peth, Solapur, Tq. & Dist. Solapur. ....Respondents. Shri. K.K. Kulkarni, Advocate for the appellant. Shri. Mukul Kulkarni, Advocate for the respondent Nos. 1 and 2. CORAM : R.M. BORDE, J. DATE : 3rd March, 2010 ORAL JUDGMENT : 1. This is an appeal presented by the original plaintiff raising exception to the order passed by the trial Court, directing rejection of 2 plaint in exercise of powers under Order 7, Rule 11(d) of the Code of Civil Procedure. 2. The only substantial question of law, that arises for consideration in the appeal, is as under :­ (i) Whether the trial Court was justified in directing rejection of plaint in exercise of powers under Order 7, Rule 11(d) of the Code of Civil Procedure and whether the ground exists for such rejection ? Admit. By consent of learned counsel for respective parties, appeal is heard finally forthwith. 3. The plaintiff instituted Regular Civil Suit No. 107/2008 against the defendants, claiming a declaration of ownership and for setting aside the sale alleged to have been effected on 14th September 1963 in favour of defendants. The plaintiff also claimed a decree of perpetual injunction against the defendants, restraining them from causing interference in possession of the plaintiff. The plaintiff also prayed for partition and separate possession of her 1/2 share in the suit property. The plaintiff approached the Court with a contention that the property in dispute is an ancestral property and was possessed by her father. The plaintiff is one of the daughter of deceased Shankar Gawali, who has one another daughter by name Kumudani. Father of the plaintiff died on 25.10.1985. 3 It is alleged that during his lifetime, he has executed a will deed in favour of both the daughter in respect of the ancestral property and the plaintiff, on the basis of the said will deed, claims her entitlement to 1/2 share in the property. It is further contended by the plaintiff that the defendant No. 1 is husband of her sister and defendant No. 2 is brother of defendant No. 1. Both of them, by practicing fraud have secured execution of sale deed on 14th September 1963 from the father of the plaintiff. It is further contended that at the time of execution of sale deed, the father of the plaintiff was ill and not in proper mental state. The plaintiff, as such, also claims for cancellation of the sale deed. The plaintiff has further contended that she is in occupation of the suit premises since last 70 years and after demise of her father, her possession over the ancestral property is in the capacity of co­owner. The plaintiff, as such, claims a decree of perpetual injunction against the defendants. The plaintiff, in the alternate, has also claimed her 1/2 share in the suit property. It is contended by the plaintiff that the property is ancestral one and on demise of her father, she being one of the daughter, is entitled to 1/2 share. The cause of action shown in the plaint is on 10th May 2009 when the defendants came to Tuljapur and obstructed the possession of the plaintiff. 4. After the plaintiff presented her plaint and after causing their appearance, the defendants tendered an application and objected for entertainability of the plaint in the present form on the ground that the 4 relief claimed is barred by limitation. The defendants contend that the plaint is required to be rejected in view of provisions under Order 7, Rule 11(d) of the Code of Civil Procedure. 5. The trial Court, considering the objections raised by the defendants, has directed rejection of the plaint by order dated 21.6.2008. The first appellate Court while considering the appeal presented by the original plaintiff, being Regular Civil Appeal No. 162/08, confirmed the order passed by the trial Court in view of judgment and decree dated 13.7.2009. 6. I have heard the respective counsel appearing for the parties. Shri. K.K. Kulkarni, learned counsel appearing for appellant has contended that there are several reliefs claimed in the plaint. One of the relief is in respect of the cancellation of the sale deed. He has contended that the plaint cannot be rejected on entertaining the objections raised by the defendants on the ground of bar of limitation. The counsel for the respondent has opposed the contentions raised by the counsel for the appellant. 7. On perusal of the plaint, it appears that there are several reliefs claimed in the plaint. One of the relief is in respect of grant of injunction restraining the defendants from interfering the plaintiff's possession. The plaintiff has also claimed her entitlement of 1/2 share in the suit 5 property. It is stated in the plaint itself that the property in the hands of her father was the ancestral one. The plaintiff while claiming the relief in respect of her declaration as owner, has also prayed for cancellation of the sale deed which is executed by her father on 14th September 1963 in favour of the defendants. Rule 11 (d) of Order VII provides for the contingencies in respect of the rejection of the plaint. The relevant portion is quoted below :­ "11. Rejection of plaint.­ The plaint shall be rejected in the following cases:— (a) ........ (b) ......... (c) ......... (d) where the suit appears from the statement in the plaint to be barred by any law;" Rule 11(d) of Order VII of Code of Civil Procedure permits the Court to reject the plaint when it is demonstrated that the suit appears appeared to be barred by any law. It is contended by the respondents/original defendants that the whole suit is barred by limitation as the prime challenge is in respect of sale in favour of defendants by the deceased father of the plaintiff which is of the year 1963 and the relief in respect of cancellation of sale is obviously barred by limitation. The trial Court as well as the first appellate Court have also directed rejection of plaint on the ground that the relief claimed appears 6 to be barred by limitation. 8. In order to understand the controversy, one has to look in to the reliefs claimed in the plaint as stated above. The cancellation of the sale is one of the relief claimed in the plaint. The plaintiff claims 1/2 share in the suit property of her father, which is ancestral one and by way of alternative claim, the plaintiff has also requested for partition of the suit property and separate possession of her 1/2 share. The contention raised by the plaintiff in respect of the ancestral property is to be accepted. Probably, the claim raised in respect of the validity of sale, would not be an impediment in her way in securing the relief in respect of partition of the ancestral property. The plaintiff has also claimed the declaration of ownership. The relief claimed by the plaintiff in respect of the perpetual injunction cannot be said to be barred by limitation. It is contended by the respondents/defendants that the plaint does not disclose accrual of cause of action, however, the submission made is contrary to the record. Paragraph No. 6 contained in the plaint gives 10th May 2008 as the date of accrual of cause of action. It is for the plaintiff to establish after leading evidence, her contentions in respect of accrual of cause of action. The merits of the controversy cannot be determined at this stage. The first appellate court has over stepped the limits and recorded findings in respect of the merits of the contentions raised by the plaintiff in the plaint. It would not be permissible for the Courts to record the findings in respect of the merits of the controversy at the stage of 7 admission of the plaint. For the reasons stated above, I am of the opinion that the order passed by the trial Court directing rejection of plaint is erroneous and liable to be quashed and set aside. 9. The appeal, therefore, stands allowed. The orders passed by the learned Civil Judge, Junior Division, Tuljapur on 21/6/2008 below Exh. 22 in R.C.S.No. 107/2008 and confirmed by the District Judge ­1, Osmanabad in Regular Civil Appeal No. 162/2008 on 13.3.2009 are quashed and set aside. In the facts and circumstances of the case, there shall be no order as to costs. [ R.M. BORDE, J. ] ssc/sa810.09