1 2025:CGHC:28287 NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR CR No. 77 of 2025 1 - Amarnath Tyagi S/o Late Mangat Singh Tyagi Aged About 82 Years R/o State Bank Colony, Sundar Nagar Raipur (C.G.) 2 - Rajkumar Natthani S/o Late B.D. Natthani Aged About 70 Years R/o Patel Gali, New Shanti Nagar Raipur (C.G.) 3 - Sharda Devi Natthani W/o Late B.D. Natthani Aged About 95 Years R/o Patel Gali, New Shanti Nagar Raipur (C.G.) ... Petitioners versus 1 - Rekha Tyagi W/o Suryakant Tyagi Aged About 43 Years R/o State Bank Colony, Sundar Nagar Raipur (C.G.), Currently R/o Village Kharkhauda, Dist- Merut (U.P) 2 - State Of Chhattisgarh Through Collector Raipur, District Raipur (C.G.) ... Respondents For Petitioners/Applicants : Shri Y.C. Sharma, Senior Advocate with Ms. Pooja Loniya, Advocate For Respondent No.1 : Shri Pushp Kumar Gupta, Advocate For Respondent No.2/State : Ms. M. Asha, Panel Lawyer Hon’ble Shri Justice Amitendra Kishore Prasad Order on Board Digitally signed by GOPAL SINGH Date: 2025.07.19 17:28:32 +0530 2 26/06/2025 1. The petitioners/applicants, who were defendants before the Trial Court, have filed this revision petition being aggrieved by the order dated 22.2.2025 passed by the 19th Civil Judge Class II, Raipur in Civil Suit No.76A of 2024 by which their application filed under Order 7 Rule 11 CPC has been rejected. The aforesaid defendants have filed an application under Order 7 Rule 11(d) CPC stating that the suit filed by the plaintiff was barred by limitation. The plaintiff has filed an application for condonation of delay which is not at all applicable in institution of civil suit being barred by limitation. As such, the suit being prima facie suffering from limitation was required to be dismissed, however, the said application has been illegally rejected, as such this revision has been filed. 2. The respondent/plaintiff has filed a suit for declaration of title and permanent injunction stating that the land in question situated at Village Jora, Patwari Halka No.112, Revenue Circle Mandir Hasaud, Tahsil and District Raipur, Chhattisgarh bearing Khasra Numbers 275, 276/1, 286, 271/1, 271/2, 274/1, total Khasra Numbers 6 and total area 2.158 hectares and Khasra Numbers 277, 284/3, 285, 276/2, 276/3, total 5 Khasra Numbers, total area 2.923 hectares agricultural lands were self acquired property of late Hari Singh Tyagi, who was uncle-in-law of the plaintiff and uncle of defendant No.1. said late Hari Singh Tyagi has executed a will deed dated 3 12.6.2006 in favour of the plaintiff. Late Hari Singh Tyagi was issueless. The plaintiff was taking care of him and as such by the love and affection, he has executed the aforesaid will deed in her favour. Defendant No.1 was knowing all these facts. She was assured that they will not misuse the property which was given on will to the plaintiff. However, subsequently, the defendants have got their names mutated in the revenue records after the demise of late Hari Singh Tyagi and they have issued a notice in a daily newspaper Nav Bharat dated 27.12.2023 for sale of the land. They further started harassing the plaintiff and have driven her out from her matrimonial house due to which she went to her mother’s house at Merrut. Against the mutation order dated 24.12.1977, she has already moved an appeal before the concerned Sub Divisional Officer, Raipur which is pending for consideration. Later on, the defendants have filed a suit bearing Civil Suit No.1A of 2013 before the Civil Judge Class II, Raipur. When the present plaintiff came to know about the same, she moved an application for impleading her as a party which was rejected by the said Court stating that the plaintiff is having power and authority to file separate suit for her claim in the property. As such, the suit has been filed. It has been categorically stated that from the date of knowledge the suit is well within limitation and the same is within the jurisdiction of the Court. However, an application under Section 5 of the Limitation Act was filed stating that if any delay has been occurred in filing the suit the same may be condoned. 4 3. The Trial Court, after considering the plaint averments, has registered the suit bearing Civil Suit No.76A of 2024. Upon receipt of notice of the suit, the defendants have filed an application for rejection of the suit stating that the suit is hopelessly barred by limitation and as such registration of the suit is against the legal proposition. The plaintiff herself has filed an application under Section 5 of the Limitation Act for considering the delay in filing the suit which has been filed based upon the will, as such the registration of the suit itself is not in accordance wit law. The suit is required to be dismissed on the ground of limitation under Order 7 Rule 11(d) CPC. 4. The plaintiff has also filed a reply to the application filed under Order 7 Rule 11(d) CPC stating that the suit is within limitation. The application under Section 5 of the Limitation Act has been filed in caution. The application is liable to be dismissed. The Trial Court, after considering the averments made in the plaint and the objection raised by the plaintiff, has passed order dated 22.2.2025 while dismissing the application under Order 7 Rule 11(d) CPC stating that the application is not in accordance with law and the same is bona fide one, as such it was dismissed. 5. Shri Y.C. Sharma, Learned Senior Counsel assisted by Smt. Pooja Loniya, Advocate appearing for the petitioners/applicants submits that from the plaint averments itself the suit is prima facie barred by limitation. The plaintiff 5 knowing said fact has filed application under Section 5 of the Limitation Act for condoning the delay in filing the suit. It was argued that Section 5 of the Limitation Act is not applicable for condoning the delay in instituting suit. The filing of said application itself goes to show that suit is time barred, as such considering the plaint averments itself, the suit is liable to be dismissed at the threshold. 6. I have heard Learned Senior Counsel appearing for the petitioners/applicants and learned counsel appearing for the respondents and perused the material available with utmost circumspection. 7. From perusal of the plaint, it seems that the suit is filed for declaration of title and permanent injunction on the basis of will deed dated 12.6.2006 executed in favour of the plaintiff. Though the plaintiff has categorically stated in her plaint that the suit is within limitation, however, under bona fide belief, she has also filed an application under Section 5 of the Limitation Act stating that she is not having any legal knowledge and as such if any delay has occurred in filing the suit, the same may be considered and the suit may be decided on merits. 8. Though Learned Senior Counsel for the petitioners/applicants has placed reliance upon the judgments passed by the Hon’ble Supreme Court in the matters of Dahiben v. Arvindbhai Kalyanji Bhanusali (Gajra) dead through 6 Legal Representatives and others, reported in (2020) 7 SCC 366, Raghwendra Sharan Singh v. Ram Prasanna Singh (Dead) By LRs, reported in 2019 0 Supreme (SC) 283, F. Liansanga and another v. Union of India and others, reported in 2022 LiveLaw (SC) 252 and while submitting that when the suit is prima facie barred by limitation the suit can be dismissed on an application filed under Order 7 Rule 11 CPC. It was further stated that a plaint contravening in law must be rejected if by clever drafting an attempt is made to bring the suit within limitation. The Court is duty bound to lift the veil. It was further argued that application under Section 5 of the Limitation Act does not apply to suits, but only to appeals and to the applications except the application filed under Order 21 CPC. Limitation may harshly affect a particular period, but, it has to be applied with all its rigour when the statute is prescribed. 9. In order to decide an application under Order 7 Rule 11 CPC, the law is well settled. The said application has to be decided only on the basis of plaint averments. It cannot be decided on the objections made by the defendants either in their written statement or in the application under Order 7 Rule 11 CPC. Everything has to be gathered from the plaint averments. The cause of action which is a bundle of facts would be the period from which the limitation has to be gathered. Limitation is a mixed question of law and facts which has been decided by the Hon’ble Supreme Court in a number of cases. The same 7 cannot be decided on the basis of objection raised by the defendants. In the present matter, the plaintiff has stated cause of action to be 30.7.2023 and 3.1.2024 the dates when she was driven out from her matrimonial house and further upon knowledge of mutation of names of the defendants on 3.1.2024. From perusal of the plaint, as of now, only on the basis of application under Order 7 Rule 11 CPC, the suit cannot be held to be barred by limitation. The Hon’ble Supreme Court has reiterated this fact time and again and has held that the limitation is a mixed question of law and facts and the same can only be decided during the course of trial, as such when the present case is considered, it is found that the question of limitation cannot be decided at this stage on an application under Order 7 Rule 11 CPC. For deciding a suit to be barred by limitation, evidence is required to be recorded. The issue of limitation can be adjudicated on the basis of evidence led by the parties. 10. Accordingly, the revision being bereft of merit is hereby rejected. Sd/- (Amitendra Kishore Prasad) JUDGE Gopal Singh