-: 1 :- HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION NOTICE OF MOTION NO. 2927 OF 2009 IN SUIT NO. 858 OF 2008. Fakruddin Mohd. Farook Khan & ors. ..Plaintiffs. Versus Abdul Wali Zahidi Abdul Bari & Ors. ..Defendants. Mr. S. U. Kamdar, Senior Advocate a/w Pooja Patil, S. B. Pawar and Swati Sawant i/b M/s. S. K. Legal Associates for the plaintiffs. Mr.S.C.Naidu i/b M/s. C.R.Naidu & Co., for the defendant no.1– Applicant. Coram : R. V. MORE, J. Date : February 1, 2010. P. C. : 1. Heard Mr. S. C. Naidu, learned counsel appearing on behalf of the defendant no.1 and Mr. S. U. Kamdar, learned senior counsel appearing on behalf of the plaintiffs. 2. The 1st defendant has taken out this notice of motion with a prayer to reject the plaint under Order-VII, Rule-11(d) of the Code of Civil Procedure, 1908 on the ground that the suit as framed by the plaintiffs is barred by the provisions of Limitation Act, 1963. 3. The dispute is about the property M/s. Cafe Sahar, ademasuring 1206 sq. ft. bearing Census No. KEG-1-1/1C, situate on a plot of land bearing CTS No. 1(part) admeasuring 4020 sq. ft. lying, being and situate at Sahar Talav, Andheri-Sahar Road, Kabir Nagar, Chakala, Andheri (E), Mumbai – 400 099(for the sake of brevity hereinafter referred to as “the -: 2 :- said property”.) The suit is filed for declaration that the original plaintiff is lawful owner of the said property. Decree of possession of the said property from the defendant no.1 or any of his successor, assignees or representatives is also asked for. The plaintiff has also claimed declaration that the defendant no.1 or any of his successor, assignees or representatives are in illegal/wrongful use, occupation and possession of the said property. Further declaration that documents enumerated in prayer clause (c) are illegal and void is also sought. 4. Mr. C. R. Naidu, invited my attention to the pleadings in paragraph no. 29 of the plaint and submitted that the plaintiff has mainly challenged the deed of assignment dated 5th July 1997, the deed of partnership entered into in the year 1998 and licences issued subsequently. He submitted that the suit is filed on 19th December 2007, i.e., after the prescribed period of limitation. In order to show that the plaintiff had knowledge about the deed of assignment in the year 1997 itself or at any rate prior to three years of filing of the suit, he relied upon the contents of paragraph nos. 20 and 23 and submitted that the conjoint reading of the contents of these paragraphs alongwith the contents of documents annexed to plaint reveals that the suit is barred by law of limitation. 5. Mr. S. U. Kamdar, learned senior counsel on the contrary contested the notice of motion by submitting that the plaintiff has also claimed possession of the said propety and the limitation to file suit for possession is 12 years. He also submitted that under Order-VII Rule-11(d) of CPC, the -: 3 :- plaint cannot be rejected in part, and even assuming that some reliefs are barred by limitation, the suit cannot be dismissed as the relief of possession by no stretch of imagination can said to be barred by the law of limitation. He further submitted that though the document in question was executed on 5th July 1997, the original plaintiff got knowledge thereof only in the month of October 2007 and therefore the suit filed in the month of December 2007 is within limitation. 6. Having heard the learned counsel and learned senior counsel appearing for the defendant no.1 and the plaintiff respectively, I find no merit in the notice of motion. I have perused the averments in paragraph no. 29 as well as paragraph nos. 20 & 23 of the plaint. I have also gone through Exhibit- “B” at page 95, namely, letter written by the plaintiff’s advocate to the defendants on 12th October 2004, on which heavy reliance was placed by Mr. Naidu. The original plaintiff has in paragraph no. 29 itself averred that he got knowledge of execution of the document in question on 30th October 2007. By now it is settled position that for the purpose of provisions of Order-VII Rule-11(d) of CPC, contents of the plaint are to be taken as it is and merits thereof cannot be gone into. Paragraph no.20 of the plaint refers to the plaintiff’s advocate’s letter dated 2nd December 2004. This letter is written to the defendants. In this letter I do not find any reference to the documents in question. The letter speaks about the oral agreement between the original plaintiff and the defendant nos. 1 to 17. Therefore, at this stage, the averments in the plaint that the -: 4 :- original plaintiff got knowledge about the documents in question in the month of October 2007 will have to be accepted. 7. Be that as it may, the Apex Court in the matter of D. Ramchandran v/s. R. V. Janakiraman & Ors. reported in AIR-1999 SC 1128 has held that the Court cannot dissect pleadings into several parts and strike out portion which does not disclose cause of action. On the basis of averments in plaint I find that the plaintiff got knowledge of execution of document in question in the month of October 2007 and therefore the relief of cancellation of the said document is not barred by the law of limitation. The defendant no.1’s notice of motion deserves to be dismissed on that ground alone. In any case prayer of possession cannot said to be barred by limitation, therefore relief for possession will survive. Taking totality of the facts and circumstances of the case into consideration, I find that the notice of motion is devoid of merits and same is therefore dismissed. 8. It is expressedly made clear that observations made above are prima facie and tentative and are made for the purpose of disposal of the present notice of motion. Needless to state that the suit will have to be tried on its own merits without being influenced in any manner by the observations made hereinabove. (R.V. MORE, J.)