THE HON’BLE SRI JUSTICE V.V.S.RAO AND THE HON’BLE SRI JUSTICE B.N.RAO NALLA CIVIL MISCELLANEOUS APPEAL No.934 of 2009 AND CIVIL REVISION PETITION No.4043 of 2009 Dated:03.02.2010 Between: M.Lakshminarayana, And others. …Appellants and D.B.Pradeep Kumar, And others. …Respondents THE HON’BLE SRI JUSTICE V.V.S.RAO AND THE HON’BLE SRI JUSTICE B.N.RAO NALLA CIVIL MISCELLANEOUS APPEAL No.934 of 2009 AND CIVIL REVISION PETITION No.4043 of 2009 COMMON ORDER: (per Hon’ble Sri Justice V.V.S.Rao) Defendant Nos.1 to 6 in O.S.No.71 of 2009 filed these matters aggrieved by the common order dated 14.07.2009 passed by the Court of the I Additional Chief Judge, City Civil Court, Secunderabad, in I.A.No.981 of 2009 and I.A.No.1240 of 2009 in the said suit. C.M.A is filed against the order in the first interlocutory application and C.R.P is filed against the order in the second interlocutory application mentioned hereinabove. Be it noted, the first application was filed by the respondents for ad interim injunction restraining the appellants from alienating the suit schedule property and the other application was filed by the appellants under Order VII Rule 11 of the Code of Civil Procedure, 1908 (CPC), to reject the plaint, inter alia, on the ground that it is barred by limitation. The Court below allowed the injunction application and dismissed the other one. For the sake of convenience, the parties are referred as per the status in the suit. The plaintiffs’ case is as follows. Kundanbai, grandmother of plaintiff Nos.1 to 4 and great-grandmother of defendant Nos.7 to 10, purchased the premises bearing Door No.1-6-154 (old No.7488) admeasuring 54 square yards situated at Kandoji Bazar, Secunderabad, under registered sale deed dated 19.08.1955, from Gowramma. She was in possession of the property. Father of plaintiffs succeeded to the property after death of Kundanbai. They filed rent control petition against Hanumanth Rao in 1964 and obtained possession through Court bailiff on 27.11.1964. In respect of other half Kundanbai filed R.C.No.175 of 1964 against Gopal, the father of defendant Nos.3 to 6, but the same was withdrawn. Defendants are residing in House No.1-5-157. In May 1984 they tried to forcibly dispossess the plaintiffs. Therefore, O.S.No.1580 of 1984 was filed on the file of the Court of the I Assistant Judge, City Civil Court, Secunderabad. The same was dismissed on 01.07.1994. The plaintiffs then preferred A.S.No.40 of 1995 on the file of the Court of the I Additional Chief Judge, City Civil Court, Secunderabad. By the judgment dated 16.09.1999 the same was dismissed, but observations were made that the plaintiffs are owners of the property. When the defendants illegally claimed the property the suit for declaration, possession and mesne profits was filed. The application, being I.A.No.981 of 2009 was filed alleging that defendants are trying to alienate the property to defeat the rights of the plaintiffs. Defendant Nos.1 to 6 filed a common written statement opposing the suit. They alleged that the suit schedule property is owned and possessed by late Buchamma, grandmother of defendant Nos.1 and 2, great grandmother of defendant Nos.3 to 6. After her death her three sons inherited the property and subsequently defendants became owners of the suit schedule property, which is assessed by Municipal Corporation of Hyderabad. They further alleged that the suit is barred by limitation under Articles 64 and 65 of the Limitation Act, 1963, and that having failed in O.S.No.1580 of 1984, the plaintiffs cannot file suit for declaration of title. They raised similar pleas in the counter affidavit filed in the Interlocutory Application. They also raised the same grounds in their application, being I.A.No.1240 of 2009, filed under Order VII Rule 11 of CPC for rejection of the plaint. During the enquiry into the two interlocutory applications plaintiffs who are described as respondents in the impugned order marked Exs.B1 to B4, which include the sale deeds as Exs.B1 and B2, a copy of judgment in A.S.No.40 of 1995 as Ex.B5 and Exs.B7 to B12 which are the photographs. Defendants who are described as petitioners in the impugned order marked eleven documents. But they did not mark any sale deed or documents of title. Considering the documentary evidence and relying on Kunjan Nair Sivaraman Nair v Narayanan Nair[1] and Ramaiah v V.N.Narayana Reddy[2], the Court below came to the conclusion that the suit is not barred under Order II Rule 2 of CPC and that it is just and proper to injunct the defendants from alienating the property and that they failed to make out the case for rejection of plaint. The Counsel for the defendants submits that the plaintiffs failed to prove prima facie case with regard to their alleged title to the suit schedule property, and therefore, the Court below ought not to have injuncted defendants from alienating the suit schedule property who are the original owners. Due to delay and laches in approaching the Court for declaration of title, plaintiffs failed to make out case to restrain defendants from alienating the property. Thirdly, he contends that the ground raised by the defendants in their application for rejection of the plaint squarely falls under Order VII Rule 11(d) of CPC and therefore Court below ought to have rejected the plaint as barred by limitation. In support of this he relies on Hardesh Ores (P) Ltd. V Dede and Company[3], and C.Natrajan v Ashim Bai[4]. Per contra, the learned Counsel for the plaintiffs submits that when the suit is for comprehensive relief of declaration, title, possession, mesne profits and consequential injunction, Article 65 of the Limitation Act has no application. He would further urge that the predecessor of the plaintiffs obtained possession of the suit schedule property through Court bailiff and even though their suit, being O.S.No.1580 of 1984, and A.S.No.40 of 1995, were rejected, the defendants who dispossessed the plaintiffs subsequently cannot non-suit the plaintiffs. According to him the suit is within time and in any event if Article 65 of the Limitation Act applies the question of limitation being one of fact and law, ordinarily the Court cannot reject the plaint under Order VII Rule 11 of CPC. Insofar as the plaintiffs’ application for injunction is concerned, learned Counsel contends that admittedly the defendants are making construction and if they are not injuncted, there is likelihood of disposing of the property, which might result in multiplicity of proceedings. Two points that would arise for consideration are whether the plaintiffs demonstrated prima facie case and balance of convenience to support their application for injunction, and secondly whether the defendants made out the case under Order VII Rule 11 of CPC for rejection of plaint. The defendants sought rejection of the plaint on the ground that the same is barred by limitation and also on the ground that it is barred by Order II Rule 2 of CPC. The learned trial Judge relied on Kunjan Nair Sivaraman Nair (supra) and Ramaiah (supra) and rightly concluded that when a suit is for an injunction, subsequent suit for declaration of title is not barred. Insofar as the question of limitation is concerned we have seen Ex.B5 and plaint allegations as well as the defence of the defendants. We are convinced that the plaintiffs have always been asserting their right, which they inherited through Kundanbai. Be it noted, it is the specific case of the plaintiffs that Kundanbai purchased the property under Ex.B3, that after her death the father of the plaintiffs 1 to 4 was in possession of the property. It is also their further case that Kundanbai got the tenant evicted from the land and got possession from the bailiff. Therefore, it is certainly a mixed question of fact and law and the requirement of Order VII Rule 11 of CPC in the suit being barred from reading of the plaint, does not exist in the case. In Hardesh Ores (P) Ltd. (supra) it was held. …The plaint can be rejected on the ground of limitation only where the suit appears from the statement in the plaint to be barred by any law. Mr.Nariman did not dispute that “law” within the meaning of clause (d) of Order 7 Rule 11 must include the law of limitation as well. It is well settled that whether a plaint discloses a clause of action is essentially a question of fact, but whether it does nor does not must be found out from reading the plaint itself. For the said purpose the averments made in the plaint in their entirety must be held to be correct. The test is whether the averments made in the pliant, if taken to be correct in their entirety, a decree would be passed. The averments made in the plaint as a whole have to be seen to find out whether clause (d) of Rule 11 of Order 7 is applicable. It is not permissible to cull out a sentence or a passage and to read it out of the context in isolation. Although it is the substance and not merely the form that has to be looked into, the pleading has to be construed as it stands without addition or subtraction of words or change of its apparent grammatical sense… In C.Natrajan (supra) the Supreme Court reiterated the view as follows. 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 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 SBI Staff Assn. ((2005) 7 SCC 510 : 15(4) CTC 489). 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. In view of the case law we are convinced that the reasoning of the learned trial Judge is sound and does not warrant any interference in the Civil Revision Petition. Indisputably the plaintiffs lost their injunction suit and filed appeal, which was dismissed vide Ex.B5 dated 16.09.1999. They then issued legal notice in 2008 and filed the suit in 2009. It is also not denied that defendants are in possession of the property and raising constructions. In these circumstances when there is a serious dispute with regard to the title of the property, and plaintiffs and defendants are claiming through their predecessors, it would not be proper to ignore Section 52 of the Transfer of Property Act, 1882, and direct the defendants not to alienate the property. Needless to mention that the doctrine of lis pendens is attracted and defendants cannot dispose of the property without the leave of the Court and even if they do so, it would be void. Therefore, the order of the Court below in restraining the defendants from alienating the suit schedule property to any third party is not warranted. In the result, for the above reasons, we pass the following order. C.M.A.No.934 of 2009 filed against the order in I.A.No.981 of 2009 is allowed, and C.R.P.No.4043 of 2009 filed against the order in I.A.No.1240 of 2009 is dismissed. The parties shall bear their respective costs. _______________ (V.V.S.RAO, J) ________________ (B.N.RAO NALLA, J) 03.02.2010 vs [1] AIR 2004 SC 1761 [2] AIR 2004 SC 4261 [3] (2007) 5 SCC 614 [4] (2007) 14 SCC 183