spb/- 1 cra418-11.sxw IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE SIDE JURISDICTION CIVIL REVISION APPLICATION NO. 418 OF 2011 Sharad Krishnaji Kulkarni ... Applicant/Petitioner. V/s. Dr. Atul Sadashiv Kulkarni & Ors. ... Respondents. ----- Mr. Chetan G. Patil for the Applicant/Petitioner. ----- CORAM : D. G. KARNIK, J. DATE : 01st JULY, 2011. P.C. : 1 By this revision application, the applicant/petitioner challenges the order dated January 20, 2011 passed by the 3rd Joint Civil Judge, Senior Division, Kolhapur, rejecting the application of the applicant (original defendant) for rejection of the plaint under Order 7 Rule 11 (d) of the Code of Civil Procedure. 2 Learned counsel for the applicant submitted that the present suit which is a second suit was ex-facie barred by limitation and therefore, the trial court ought to have rejected the plaint. He further submitted that previously the predecessor in title of the respondent (i.e. father of the respondent no.1 and husband of the respondent no.2) had filed a suit for possession and that was dismissed in Appeal No. 379 of 2000. Hence, spb/- 2 cra418-11.sxw second suit for possession was not maintainable. He submitted that special civil suit no.119/2010 was ex-facie barred by res-judicata and therefore, also the plaint ought to have rejected. 3 Copy of the plaint in suit no. 119/2010 as also a copy of the decision in Regular Civil Appeal 379 of 2000 is placed on record. Perusal of the copy of the appellate judgment in the previous suit discloses that the plaintiffs’ predecessor had claimed possession from the respondent on the ground of reasonable and bonafide requirement and also on the ground of default in payment of rent. The respondent therein had denied that he was a tenant and the appellate court upheld his contention that he was not a tenant and accordingly dismissed the suit. The present suit has been filed by the plaintiffs, accepting the decision of the appellate court that the defendant is not a tenant and have accordingly claimed that the defendant is in unauthorized occupation i.e. trespasser. The cause of action in the previous suit and in the second suit is entirely different. Second suit is therefore, not ex-facie barred by res-judicata as stated by the learned counsel for the applicant. 4 As regards the limitation under Article 56 of the Limitation Act, period of limitation for filing of a suit for possession of immovable property is 12 years and the period begins to run from the date on which spb/- 3 cra418-11.sxw the possession of the defendant become adverse to the plaintiff. When the possession of the applicant- defendant became adverse is the question of fact which would be required to be decided on consideration of evidence by the trial court. It cannot be said that the suit is ex-facie barred by limitation. Learned counsel for the applicant relied upon the decision of the Supreme Court in the case of N.V.Srinivasa Murthy vs. Mairyamma (Dead) by proposed L.Rs (AIR 2005 S.C.2897) in support of his contention that the plaint which is barred by limitation is required to be rejected under Order 7 Rule 11(d) of the Code. As I have held earlier, the suit is not ex-facie barred by limitation and the question whether the suit is barred by limitation is a question to be decided at trial and the decision has no application to the facts of the case. 5 Learned counsel submitted that the provisions of Order 2 Rule 2 of the Code of Civil Procedure do apply in the case. This submission is only stated to be rejected. The provisions of Order 2 Rule 2 do not at all apply to the facts of the present case. 6 There is no merit in the revision application. The Revision Application is hereby rejected. [D.G. KARNIK, J.]